Baker v. State

• Decision Date: 23 June 2000
• Docket Number: No. 5D98-2333.,5D98-2333.
• Citation: 760 So.2d 1085
• Parties: Omar T. BAKER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

760 So.2d 1085

Omar T. BAKER, Appellant, v. STATE of Florida, Appellee.

No. 5D98-2333.

District Court of Appeal of Florida, Fifth District.

June 23, 2000.

Paul Morris of Law Offices of Paul Morris, P.A., Coral Gables, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Lori E. Nelson and Kellie A. Nielan, Assistant Attorneys General, Daytona Beach, for Appellee.

W. SHARP, J.

Baker appeals his judgment and sentences after a jury convicted him of first degree felony murder and armed robbery. He raises numerous points on appeal which we find, after a careful review of the record, have no merit.

First, Baker argues the trial court erred in denying his motion for acquittal at the close of the state's case because the evidence was insufficient (independent of Baker's out-of-court statements and confessions) to establish the elements of either armed robbery or first degree felony murder. Fla. R.Crim. P. 3.380(b); Morris v. State, 721 So.2d 725 (Fla.1998). This argument references two different rules in criminal cases: corpus delicti and necessity to acquit a defendant if the state fails to prove a prima facie case before resting.

With regard to the corpus delicti rule,¹ the prosecution must present independent evidence that "the charged crimes were committed" before being able to use a defendant's own statements or confession in court. Williams v. State, 689 So.2d 393 (Fla. 3d DCA 1997). The corpus delicti cannot be based solely on a defendant's extra-judicial statements. In a homicide case, the state must show a person died, the death was caused by a criminal agency of another, and the identity of the deceased. Franklin v. State, 718 So.2d 902 (Fla. 5th DCA 1998). In a robbery case, it must be shown that there was a taking of money or property from a person, with the intent to deprive the person of that money or property, and the use of force, violence, assault or putting in fear.

In this case, the state established that Pedro Negron, a clerk in an Amoco filling station in Daytona Beach, was approached early in the morning (about 1:00 a.m.) by two men. The surveillance camera, which was played for the jury, showed Pedro responding to the men at the service window, putting down a telephone on which he had been talking, getting some cigars and cigarettes, taking money from the cash drawer, and handing it over to a person outside. Almost immediately thereafter, Pedro received a lethal gun shot to his chest. He fell to the floor. A few seconds elapsed while the camera showed him still moving on the floor. Then a person, later identified as Damien Cokley, was filmed coming through the window and shooting Pedro in the head twice. Pedro was identified at the trial as the victim of the taped homicide. The medical examiner and detectives testified as to what they saw, and the cause of Pedro's death.

As regards the robbery charge, the store owner who was called to the crime scene shortly after the murder took place, verified that $202.00 was missing from the cash drawer and that Pedro Negron had been on duty that night. Although the state did not expressly show Pedro was "put in fear," that is a fact a jury could infer from his immediate response in handing over the store's cash. In addition, force was used on Pedro in the form of gun shots, enabling the two men to escape from the crime scene. There was also evidence from independent sources (not Baker) that Pedro knew and recognized Baker and Cokley, and could have identified them.

Further, the state presented hearsay statements made by Cokley to detectives, and others, that Baker was the primary planner and executor of the robbery/murder. They were admitted at trial without objection. At first Cokley said Baker shot Pedro once, then he (Cokley) fired the last two shots. Cokley also told Detective Doyle that Baker was the one with the gun at the window. Other witnesses, exclusive of Baker's statements, linked Baker to the murder weapon. Thus the corpus delicti of both crimes was well-established, independent of Baker's extra-judicial statements.

The second rule referenced by Baker's motion for judgment of acquittal requires the state to prove with competent substantial evidence, the elements of the crimes charged before resting its case.² In determining whether the state has done so, the defendant's admissions or confessions to others outside the trial context may be used.

A trial court should not grant a motion for acquittal in a criminal case if there is any view of the evidence, which is favorable to the state's case, from which the jury could reasonably believe or infer facts that would prove the state's charges. Woods v. State, 733 So.2d 980, 985 (Fla. 1999); Cox v. State, 711 So.2d 1323 (Fla. 5th DCA 1998). On appeal, the reviewing court must look at the evidence most favorable to sustain the jury's verdict. Blair v. State, 481 So.2d 1279 (Fla. 3d DCA 1986).

The evidence in this case was extremely strong. The determination of the identities of the two men at the window at the Amoco station resulted from excellent police work. Homicide detectives traced the murder weapon, a Lorcin .380 automatic, from the time it was borrowed by Baker from Raymond Carter, to Baker's taking it to the Amoco station, retrieving it from Cokley, returning it to Carter, and then taking it back. It then was passed on (or stolen) down a line of friends and acquaintances; Tesfa Walters, to Simroy Sampson to Marlin Sampson, who recovered it for the police.

As part of the state's case, some of Baker's friends and acquaintances repeated at the trial various statements Baker had made to them about the Amoco murder. Baker told Danton Wood, shortly before the robbery/murder, he wanted to go and make some money, "hit a lick," which means commit a robbery. Later, Baker told him there was a "body on the gun," meaning it had been used to kill someone. Woods also said Baker and Cokley had hinted to him that they were involved in the murder.

Tesfa Walters (also known as Sharkey) testified he rented a car with Baker, and they drove around together. The murder weapon was in the car. Baker told him there was a body on the gun. Raymond Carter, the original owner of the murder weapon, testified Baker told him also there was a body on the gun, and that Sharkey was "homeboy with a guy I burnt," meaning Pedro had been a friend of Sharkey's and that Baker had shot Pedro. Kenneth Davis testified that he was also riding around with Baker, and that Baker told him he and Cokley "went and took care of business and he did what he had to do." He said Baker told him he had to "pop" him (shoot Pedro).

After being arrested for these crimes, Baker made a statement that was placed in evidence. In the statement he said Cokley suggested they rob a store. He asked the clerk for money and a box of Phillies (cigars). After Pedro handed the money and the Phillies over, Baker heard a bang beside his ear. Baker got scared, turned and ran. He denied having a gun or knowing that Cokley had one. He admitted going up to the window first, and rubbing his stomach to suggest he had a gun. Baker said the clerk understood the situation and what was wanted, although Baker asked only for the cigars and "change." Baker never gave Cokley any part of the stolen money and he admitted telling Sharkey and Woods there was a body on the gun.

Clearly there was sufficient evidence from which a jury could have concluded force and violence were used by Baker and Cokley to accomplish the robbery. See Pangburn v. State, 661 So.2d 1182 (Fla. 1995)

; Bass v. State, 698 So.2d 885 (Fla. 4th DCA 1997). See also Robinson v. State, 692 So.2d 883 (Fla.1997). Inferences could be drawn that either Baker or Cokley shot Pedro with the weapon supplied by Baker, or that Cokley shot him, with Baker's assistance, encouragement, and expectation. If not the shooter, sufficient evidence established Baker was a principal to both crimes. Christie v. State, 652 So.2d 932 (Fla. 4th DCA 1995); Stripling v. State, 645 So.2d 589 (Fla. 3d DCA 1994); Douglas v. State, 214 So.2d 653 (Fla. 3d DCA 1968) (evidence viewed in a light most favorable to conclusion of fact finder).

As part of the defense's case, Cokley testified that he and he alone had the idea to shoot Pedro. But the jury did not have to, nor did they, believe him. Prior to trial, Cokley had pled guilty to first degree murder in exchange for a life sentence. At the trial, the state confronted him with his many other statements concerning how the murder took place, including his accusations that Baker shot first. Cokley admitted Baker obtained the gun for the purpose of doing the robbery, and brought it to the Amoco station. Cokley testified the night of the murder Baker had the gun tucked in his waist under his shirt, the way he "usually" carried a gun. The robbery was Baker's idea. He described Baker as the leader of the two, and the one that usually got his way. Cokley also said that when he joined Baker at the window, Baker had the gun pulled out and was holding it in his right hand, on the attendant. Cokley also admitted he shot Pedro because he knew Pedro could and would identify them as the perpetrators, and he knew that armed robbery was a serious crime. As his second point, Baker argues that the trial judge erred in allowing the prosecutor to death-qualify the jury because the death penalty in this case was not available, since the "shooter," Cokley (the more guilty party), received a life sentence. Slater v. State, 316 So.2d 539 (Fla.1975). The defense had moved to strike the state's notice of intent to seek the death penalty, pursuant to Florida Rules of Criminal Procedure 3.202. However, this motion was not called for hearing until immediately prior to jury selection, and the trial judge ruled it was untimely. Prior to making closing arguments, the prosecution announced it was not seeking the death penalty.

Although the defense renewed its motion at the close of all...