ROCKER v. STATE

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Corey Joshua ROCKER, Appellant, v. STATE of Florida, Appellee.

No. 2D10–5060.

Decided: November 14, 2012

James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellee.

Corey Joshua Rocker appeals his conviction and sentence of first-degree murder. This case involves the tragic shooting death of an eighteen-year-old which occurred during an attempted robbery by a fifteen-year-old and a sixteen-year-old. Rocker, the sixteen-year-old, was found guilty as charged of first-degree felony murder and was sentenced to a mandatory term of life in prison. We affirm his conviction, but we reverse his sentence based on the recent United States Supreme Court opinion, Miller v. Alabama, –––U.S. ––––, –––– – ––––, 132 S.Ct. 2455, 2460–61, 183 L.Ed.2d 407 (2012), which held that a sentencing scheme requiring a mandatory sentence of life in prison without the possibility of parole for juvenile homicide offenders violates the Eighth Amendment's prohibition on cruel and unusual punishment.

Motion for Judgment of Acquittal

Rocker argues on appeal that the trial court erred in denying his motion for judgment of acquittal because there was insufficient evidence that he acted as a principal in the attempted robbery of the victim, Brennon Days.1 This court reviews the denial of a motion for judgment of acquittal using a de novo standard of review and where a judgment is supported by competent, substantial evidence, it must be affirmed. Black v. State, 95 So.3d 884, 886 (Fla. 2d DCA 2012). “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, sufficient evidence exists to sustain a conviction.” Pagan v. State, 830 So.2d 792, 803 (Fla.2002).

First-degree murder includes the unlawful killing of a person when committed by someone engaged in either the perpetration of, or in the attempt to perpetrate, a robbery. § 782.04(1)(a)(2)(d), Fla. Stat. (2008). A person may be convicted as a principal even if he or she is not actually or constructively present at the commission of the crime when that person “aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed.” § 777.011, Fla. Stat. (2008).

In the present case, the testimony at trial showed that Rocker made arrangements to meet the victim on the night of the murder. There was testimony that the victim had sold drugs to Rocker three times in the past. At about 6:48 p.m., Rocker called an acquaintance named Ryan Haynes, told him that he wanted to purchase drugs, and asked for the victim's telephone number. Rocker then immediately called the victim at 6:55 p.m. Later that night at about 10:00 p.m., Rocker and his codefendant, Miterrio Banks, went to the home of Golden Butler. While at that home, Rocker attempted to call the victim three times between 10:18 p.m. and 10:30 p.m., and the victim returned Rocker's phone call around 10:32 p.m. Rocker again called the victim around 10:40 p.m., and the victim's last phone call to Rocker was at 10:45 p.m. While Rocker was talking on the phone with the victim, Butler asked who he was talking with and Banks told him, “shush,” to be quiet.

When Rocker and Banks arrived at Butler's home, they had a gun with them and Butler testified that they passed the gun back and forth, “fondling it.” Before Rocker and Banks left Butler's home, they asked Butler, a nine-time convicted felon, if he wanted to “go handle something.” When Butler declined, Rocker and Banks left the house with the gun. Butler then left the house almost immediately after Rocker and Banks, walking about a car length behind them. Butler testified that he left the house to sell cocaine.

Butler walked behind Rocker and Banks toward the entrance of the neighborhood. Although Butler was about a car length behind them, he claims to have lost sight of Rocker.2 Butler then saw the victim's car drive up and, despite the fact that Rocker was the person who had purchased drugs from the victim in the past, Butler testified that Banks approached the car by himself and bent down at the driver's side window. Banks then asked the victim, “Where the money at?” Butler then heard a gunshot. Butler ran back toward his house and he saw Rocker and Banks running away from the scene. Banks told Rocker, “I think he's dead.” The victim died from a gunshot wound to his head.

Neighbors testified that they saw people running from the scene after the shooting. Frederick and Lisa Dessaure testified that they heard a gunshot and Mr. Dessaure called 911 at about 10:50 p.m. When Mr. Dessaure looked outside, he saw one man running past his window. Mrs. Dessaure looked out from a different window and saw two people running past her house. Neither witness could identify the people running past their house.

Henry Hall, Rocker's uncle, testified that Rocker called him at about 11:00 p.m. to pick him up at a location close to where the shooting took place. When Hall picked up Rocker, he denied knowing why police cars were in the area. Although police found trace amounts of gun residue on Rocker's hands the day after the shooting, there was testimony that such trace amounts could come from handling a gun.

In viewing the evidence at trial in the light most favorable to the State, we conclude that there was sufficient, competent evidence that Rocker assisted Banks in the attempt to commit a robbery and that Banks shot the victim during the attempted robbery.

A person may be convicted as a principal under the felony murder statute where an individual is “a willing participant in the underlying felony and the murder resulted from forces which they set in motion․” Ray v. State, 755 So.2d 604, 609 (Fla.2000); see also Jackson v. State, 18 So.3d 1016, 1026 (Fla.2009) (“Whether a defendant knows of a criminal act ahead of time or physically participates in the crime, participation with another in a common criminal scheme renders the defendant guilty of all crimes committed in furtherance of that scheme.”).

The focus in a felony murder charge is not on the accused's participation in the murder but in the underlying felony. Because the victim was killed during the robbery in which Hodge participated, it matters not whether Hodge was the perpetrator of the shooting or merely participated in the robbery. In either event he would be guilty of felony murder.

Hodge v. State, 970 So.2d 923, 927 (Fla. 4th DCA 2008) (citations omitted).

In the present case, the evidence showed that Rocker aided in the commission of the attempted robbery by making numerous telephone calls to the victim to get the victim to drive to the neighborhood. Further, we do not find merit in Rocker's argument that the evidence only established that he intended to buy cocaine from the victim. L.J.S. v. State, 909 So.2d 951, 952 (Fla. 2d DCA 2005) (“[I]n order to be a principal in a crime, one must have a conscious intent that the crime be done and must do some act or say some word which was intended to and does incite, cause, encourage, assist, or advise another person to actually commit the crime.”). Rocker and Banks brought the gun with them and they were passing it back and forth between them less than an hour before the victim was shot. Further, right before they left Butler's house, they asked him if he wanted to “go handle something.” If they had simply wanted to purchase cocaine that night, they could have purchased it from Butler, who testified that he left his house that night to sell cocaine.3 Additionally, although Rocker was the person who had purchased cocaine from the victim in the past, when the victim drove to the neighborhood, Rocker apparently hid. Banks did not ask the victim about drugs but instead immediately said, “Where the money at?” Finally, after the victim was shot, Rocker was seen running away from the scene with Banks. We note that evidence of a person's flight away from a crime scene is evidence of consciousness of guilt. Brown v. State, 85 So.3d 1160, 1163 (Fla. 4th DCA 2012).

In denying Rocker's renewed motion for judgment of acquittal, the trial court summarized the evidence as follows:

So Mr. Banks' statement when he goes up to the car is evidence of what their combined plan [of robbery] was at the time. And when he says, “Where's the money at,” that's susceptible—that's a contemporaneous expression of what they're planning or their intent was previously.

And you don't go up to somebody that you're going to do a dope deal with and say where's the money at. If you go up to somebody who you know is a dope dealer that has money on him and you're going to rob him, you would say where's the money at. That's why it's significant, ․ it's a statement of what their intent was leading up to it, it seems to me.

It's all the circumstances. It's calling him on the phone a couple times to get him to come over. It's having the firearm. It's talking about doing some business. It's shushing the other guy when he's on the phone so the guy who is the object of the robbery doesn't know there's going to be multiple people there. It's going up to him and then it's saying, “Where's the money at.”

We conclude that based on the totality of all of the evidence, “a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt.” Pagan, 830 So.2d at 803; see also Maisler v. State, 425 So.2d 107, 109 (Fla. 1st DCA 1982) (“[T]he test to be applied on review of a denial of a motion for judgment of acquittal is not whether, in the opinion of the trial court or the appellate court, the evidence fails to exclude every reasonable hypothesis but that of guilt but, rather, whether the jury might reasonably so conclude.”) (quoting Amato v. State, 296 So.2d 609 (Fla. 3d DCA 1974)). Therefore, the trial court did not err in denying Rocker's motion for judgment of acquittal.

Mandatory Life Sentence

Rocker, who was sixteen years old when the offense was committed, was sentenced to a mandatory term of life in prison pursuant to section 775.082(1), Florida Statutes (2008). In Miller, 132 S.Ct. at 2460–61, the United States Supreme Court recently held that a sentencing scheme which requires a mandatory sentence of life in prison without the possibility of parole for juvenile homicide offenders violates the Eighth Amendment's prohibition on cruel and unusual punishment. Although the Court did not hold that a juvenile convicted of homicide may not be sentenced to life in prison without the possibility of parole, it noted that this sentence will be uncommon. Id. at 2469. Before sentencing a juvenile to life in prison without the possibility of parole, the Court held that the trial court must have the chance to consider mitigating circumstances, such as the juvenile's age and age-related characteristics and the nature of their crimes. Id. at 2475.

We must therefore reverse Rocker's sentence and remand his case for resentencing. On remand, we note that based on the reasoning in Miller, a sentence of life in prison without the possibility of parole would not be appropriate in this case where there was no evidence that Rocker was the person who shot the victim or that he intended that the victim be killed. See id. at 2468–69 (quoting Graham v. Florida, ––– U.S. ––––, ––––, 130 S.Ct. 2011, 2027, 176 L.Ed.2d 825 (2010) (“[W]hen compared to an adult murderer, a juvenile offender who did not kill or intend to kill has a twice diminished moral culpability.”)).

Judgment affirmed; sentence reversed and remanded.

I concur with the majority that the decision of the United States Supreme court in Miller requires the reversal of Rocker's sentence of life in prison without the possibility of parole. I also agree with the majority that Rocker's argument about the admission of evidence concerning a gunshot-residue test is without merit. However, I respectfully dissent from the majority's holding that the trial court properly denied Rocker's motion for judgment of acquittal on the felony murder charge. Because the State failed to meet its burden of proving that Rocker intended for the predicate offense of robbery to be committed and that he assisted in the commission of the attempted robbery, I would reverse his conviction for felony murder and remand for discharge.

I. THE STANDARD OF REVIEW

When “the evidence is insufficient to warrant a conviction,” the trial court must enter a judgment of acquittal. Fla. R.Crim. P. 3.380(a). As the majority correctly notes, our review of the trial court's ruling denying Rocker's motion for judgment of acquittal is de novo. Pagan v. State, 830 So.2d 792, 803 (Fla.2002); Evans v. State, 26 So.3d 85, 88 (Fla. 2d DCA 2010).

II. THE STATE'S BURDEN

Rocker was convicted as a principal under section 777.011, Florida Statutes (2008), on the theory that he aided and abetted Banks in the attempted robbery of the victim, Brennon Days. In order to convict Rocker as a principal, the State had to prove two elements: (1) that Rocker intended for the robbery to be committed and (2) that Rocker assisted Banks in the commission of the offense. See McBride v. State, 7 So.3d 1146, 1148 (Fla. 2d DCA 2009) (citing Acord v. State, 841 So.2d 587, 589 (Fla. 2d DCA 2003)). Stated differently, the State was required to prove that Rocker aided and abetted the commission of the attempted robbery and that he had the requisite specific intent to participate in the offense. See Valdez v. State, 504 So.2d 9, 10 (Fla. 2d DCA 1986). Under the case law, Rocker's mere presence at the scene, knowledge of the robbery attempt, and flight from the scene are insufficient to support his conviction as a principal for Banks' conduct. See McBride, 7 So.3d at 1148 (citing A.B.G. v. State, 586 So.2d 445, 447 (Fla. 1st DCA 1991)); Valdez, 504 So.2d at 10. Granted, the State could show Rocker's intent by circumstantial evidence. But if the State's proof of intent rested solely upon circumstantial evidence, then the proof had to be not only consistent with Rocker's guilt, but also inconsistent with his reasonable hypothesis of innocence. Valdez, 504 So.2d at 10.

III. DISCUSSION

A. Preliminary Observations

Rocker and Banks, his codefendant, were tried jointly. At the trial, the general outline of the events leading to the botched robbery and the victim's death was essentially undisputed. However, the nature of the involvement of Rocker and Banks in these events was substantially different. Golden Butler, the State's only eyewitness to the attempted robbery and the shooting of the victim, testified that Banks walked to the victim's car, bent down to the driver's side window, and demanded money. At that point, the pistol held by Banks discharged, fatally wounding the victim. Physical evidence corroborated Butler's identification of Banks—not Rocker—as the individual who approached the victim's car and demanded money. A forensic technician found a latent fingerprint matching Banks' left thumbprint on the exterior of the front door of the victim's car. Thus the State presented direct evidence of Banks' guilt as the perpetrator of the attempted robbery that resulted in the victim's death.

The State's case against Rocker was very different. Rocker was not carrying the pistol, and he made no demand for money. Butler did not place Rocker at or near the victim's car during the attempted robbery and shooting. Indeed, the evidence at trial did not establish Rocker's precise whereabouts or actions at the time that Banks was pursuing his robbery attempt. Of course, the State did establish that Rocker made a series of telephone calls to the victim designed to induce him to come to the neighborhood where the robbery occurred. If Rocker intended to commit the robbery, then one could conclude—as the majority does—that Rocker assisted Banks by luring the victim to the scene. However, because the purpose of Rocker's telephone calls is unknown, the critical question on the motion for judgment of acquittal was Rocker's intent. On the one hand, the State's theory of the case was that Rocker and Banks jointly planned to lure the victim to the neighborhood to rob him. On the other hand, Rocker's hypothesis of innocence was that he contacted the victim to set up a drug transaction without prior knowledge that Banks intended to take advantage of the situation to rob the victim.4

The State's case against Rocker as a principal to the attempted robbery was purely circumstantial. Neither Rocker nor Banks testified at the trial. The State did not present evidence of any out-of-court inculpatory statements made by either man after the event. Butler was the State's only eyewitness to the botched robbery that was perpetrated by Banks. Butler's testimony did not provide any evidence concerning Rocker's intent. Thus, to avoid a judgment of acquittal, the State had to present evidence that was not only consistent with Rocker's guilt but that was also inconsistent with his reasonable hypothesis of innocence. See Valdez, 504 So.2d at 10.

B. The Majority's Seven Factors

At pages five and six of the majority opinion, the majority marshals seven factors upon which it relies in support of its conclusion that the trial court properly denied Rocker's motion for judgment of acquittal. In the balance of my opinion, I will examine each of these factors separately. I believe that this examination will demonstrate that the State's evidence concerning Rocker's intent was subject to at least two possible explanations. More important, I believe that this examination will also demonstrate that the State failed to present evidence that was inconsistent with Rocker's reasonable hypothesis of innocence.

Factor Number One. “[T]he evidence showed that Rocker aided in the commission of the attempted robbery by making numerous telephone calls to the victim to get the victim to drive to the neighborhood.” It was undisputed at trial that Rocker had placed telephone calls to the victim to induce him to come to the neighborhood where the robbery occurred. But Rocker could not properly be convicted as a principal based on this evidence alone. “Merely creating circumstances or conditions that allow another to commit an independent offense is not enough to establish one as a principal to that offense.” C.D. v. State, 2 So.3d 994, 995 (Fla. 2d DCA 2008). Rocker's telephone calls to the victim certainly caused the circumstances or conditions that enabled Banks to pursue his attempt to rob the victim. However, Rocker's placement of the telephone calls is insufficient to establish his liability as a principal for that offense.

Moreover, as we have already seen, Rocker's placement of the telephone calls to the victim was subject to more than one explanation. The calls may have been part of a ruse to set up a robbery of the victim. However, the calls may also have been nothing more than an attempt to set up a purchase of drugs. The evidence showed that Rocker had bought drugs from the victim at least three times in the past—and probably more—without incident. The telephone calls cannot support the conviction of Rocker as a principal absent evidence of his specific intent that the robbery occur. The telephone calls themselves are not sufficient to establish such intent.

In addition, the record reflects that before Rocker called the victim from Butler's residence, he called Ryan Haynes. Haynes testified for the State at trial that Rocker had called him to buy drugs. Haynes had just been released from jail, and he was confined to his residence; Haynes told Rocker that he was unable to supply anything. During Rocker's telephone conversation with Haynes, Rocker asked for the victim's telephone number. Haynes furnished the number, and Rocker then telephoned the victim. This evidence suggests that Rocker's intent was to buy drugs, not to commit a robbery.

Factor Number Two. “Rocker and Banks brought the gun with them and they were passing it back and forth between them less than an hour before the victim was shot.” Once again, it was undisputed at trial that Rocker and Banks shared possession of a pistol at Butler's residence. But Rocker's joint possession of a pistol with Banks does not establish that Rocker intended to rob the victim. Butler testified that he did not consider the possession of a pistol by Rocker and Banks to be unusual. On the contrary, he said that the possession of guns is common in his neighborhood. Our common sense and experience tells us that the presence of firearms at drug transactions is a frequent occurrence. Thus the possession of a firearm by Rocker and Banks is just as consistent with a planned drug buy as it is with a proposed robbery.

Factor Number Three. “[R]ight before [Rocker and Banks] left Butler's house, they asked him if he wanted to ‘go handle something.’ “5 Like the majority's other factors, this one is subject to more than one explanation. Butler did not infer from the inquiry the nature of the activity that was being proposed. On direct examination, he testified that it could have meant, “Anything. Girls, money, anything.” Asked about the inquiry again on cross-examination, Butler agreed that it could have meant “[g]irls, drugs, anything.” Notably, Butler also testified that he did not think that whatever it was he was being asked if he wanted to “handle” would involve the pistol that Rocker and Banks had already displayed to him. The inquiry that is the subject of factor number three is just as consistent with Rocker's innocence as it is with his guilt.

In addition, the majority's assumption that an inquiry to Butler about handling something necessarily referred to a planned robbery of the victim is at odds with the known facts in two respects. First, Butler was adamant that neither Rocker nor Banks said anything to him about robbing someone. Second, assuming that Rocker and Banks were planning to rob the victim, they had no reason to add a third person to their group. Rocker and Banks had only one gun; they did not require additional personnel. If the two men had involved Butler in their hypothetical plot, Butler's involvement would have only resulted in reducing the shares of the loot for Rocker and Banks from one-half to one-third.

Factor Number Four. “If [Rocker and Banks] had simply wanted to purchase cocaine that night, they could have purchased it from Butler, who testified that he left his house that night to sell cocaine.” I have two observations to make concerning this factor. First, the record does not support the majority's suggestion that Rocker and Banks could have purchased cocaine from Butler. Indeed, the majority's suggestion is based on supposition and conjecture. Butler did not testify that he would have sold cocaine to Rocker and Banks. Butler may have had his own reasons for declining to deal with the other two men. Perhaps Rocker preferred to buy from the victim, who was apparently a regular supplier. It may be that Rocker and Banks did not like Butler's product or deemed it overpriced. We simply do not know. The main point here is that there is no evidence in the record on these issues.

Second, factor number four is a two-way street. If Rocker and Banks were planning to rob a drug dealer, they could have robbed Butler. They did not need to induce the victim to come to their location. Obviously, this factor cuts both ways. It does not provide reliable evidence of Rocker's intent.

Factor Number Five. “[A]lthough Rocker was the person who had purchased cocaine from the victim in the past, when the victim drove to the neighborhood, Rocker apparently hid.” This factor is unpersuasive for two reasons.

First, like the fourth factor, the majority bases its fifth factor on supposition and conjecture. The majority's suggestion that Rocker concealed himself when Banks approached the victim's car lacks support in the record. In fact, the State did not present any evidence concerning Rocker's precise whereabouts and actions when the attempted robbery and shooting occurred. Butler, the State's only eyewitness to these events, testified that he did not know where Rocker went when Banks approached the victim's car. According to Butler, “[he] didn't see [Rocker] at all” during this critical time. When the prosecutor asked Butler if there had been a bush or a tree that blocked his view of Rocker, Butler replied, “To a certain extent. But if he was there, I would have seen him.” The bottom line is this: Rocker was certainly in the general vicinity when Banks attempted to rob the victim. But the evidence did not establish where Rocker was located or what he was doing.

Second, assuming that Rocker did hide as the majority suggests, this behavior is just as consistent with his lack of knowledge of Banks' intent to rob the victim as it is with a common purpose. Perhaps Rocker did not want law enforcement officers, confidential informants, or others to observe him in close proximity to a drug transaction between Banks and the victim. Here again, the State's evidence—sparse as it is on this point—is subject to more than one reasonable explanation. And one of those explanations is consistent with Rocker's reasonable hypothesis of innocence.

Factor Number Six. “Banks did not ask the victim about drugs but instead immediately said, ‘Where the money at?’ “ I agree that Banks' demand for money from the victim is highly probative of Banks' intent to commit a robbery. However, Banks' verbal act does not prove anything about the critical issue-Rocker's intent. The unmistakable evidence of Banks' intent does not plug the hole in the State's proof about whether Rocker had the specific intent to participate in a robbery of the victim.

Factor Number Seven. “[A]fter the victim was shot, Rocker was seen running away from the scene with Banks.” I acknowledge that both Rocker and Banks ran from the scene after Banks shot the victim. However, this evidence is also unavailing. Flight from the scene is insufficient to support a conviction of an accused as a principal. McBride, 7 So.3d at 1148; A.S.F. v. State, 70 So.3d 754, 757 (Fla. 4th DCA 2011); A.B.G., 586 So.2d at 447; J.H. v. State, 370 So.2d 1219, 1220 (Fla. 3d DCA 1979). Moreover, Rocker may have fled the scene for a variety of reasons. He may have been concerned about his culpability in the failed drug transaction. The unexpected discharge of the pistol wielded by Banks provided ample cause for fright and flight. Butler, who was not involved in the purchase of drugs from the victim or in the attempted robbery, also fled the scene. The evidence of Rocker's flight does not provide evidence of his intent to participate in the robbery of the victim.

IV. CONCLUSION

The foregoing review of the factors upon which the majority relies to support Rocker's conviction demonstrates that the State's evidence, which was purely circumstantial, was not inconsistent with Rocker's reasonable hypothesis of innocence. The majority reaches its conclusion that the evidence was sufficient to support Rocker's conviction by an impermissible stacking of inferences. See I.Y.D. v. State, 711 So.2d 202, 203 (Fla. 2d DCA 1998). Here, “one could intuitively conclude that [Rocker] might be guilty. However, ‘guilt cannot rest on mere probabilities.’ “ Davis v. State, 761 So.2d 1154, 1159 (Fla. 2d DCA 2000) (quoting Arant v. State, 256 So.2d 515, 516 (Fla. 1st DCA 1972)). Accordingly, I would reverse Rocker's judgment and sentence and remand for his discharge. Since the majority has decided to affirm Rocker's conviction for felony murder, I agree that this court must reverse his sentence.

WHATLEY, Judge.

VILLANTI, J., Concurs. WALLACE, J., Concurs in part and dissents in part with opinion.