Barron v. State

• Decision Date: 22 August 2007
• Docket Number: No. 3D03-2689.,3D03-2689.
• Citation: 990 So.2d 1098
• Parties: John Lee BARRON, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

990 So.2d 1098

John Lee BARRON, Appellant, v.The STATE of Florida, Appellee.

No. 3D03-2689.

District Court of Appeal of Florida, Third District.

August 22, 2007.

Rehearing and Rehearing En Banc Denied October 8, 2008.

Karen M. Gottlieb, Special Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Jill K. Traina, Assistant Attorney General, for appellee.

Before SHEPHERD and ROTHENBERG, JJ., and LEVY, Senior Judge.

ROTHENBERG, Judge.

The defendant, John Lee Barron, appeals his convictions for second degree felony murder, attempted armed robbery, and attempted second degree murder.We affirm.

According to the State's case, in September 2000, Ed Cody was at home with his teenage son, Derrick, when a woman rang the buzzer to the gate surrounding Cody's home.When Cody responded, the woman explained that she had car trouble and needed assistance.Cody went outside to help the woman.While looking under the hood of the woman's car, a second car entered the gate and pulled up next to Cody.The driver of this second car exited the car and placed a gun to Cody's head.Immediately thereafter, three more men, armed with firearms, exited the car, and Cody realized that the woman was a decoy.Although the four men wore caps or masks, Cody testified that he saw their faces before they covered them.While the driver held Cody at gunpoint, the other three gunmen, one of whom Cody identified as the defendant, approached Cody's home, and Cody yelled to his sixteen-year-old son, Derrick, to call 911.Derrick retrieved a gun from his father's bedroom and began to dial 911.When the men entered the house, Derrick became frightened that he would be heard and, therefore, did not complete the call.While hiding in the bathroom, he watched as the men rifled through drawers and beneath his father's mattress.Derrick exited the bathroom and began firing at the men.

Meanwhile, outside of the Cody home, the driver of the second vehicle tried to restrain Cody with handcuffs.When Cody heard shots being fired from inside his home, he believed the gunmen were shooting at his son, Derrick, and he tried to break away to get to his son.As he started towards the house, the woman yelled for the driver to shoot Cody because he had seen her face.The driver shot Cody twice in the back as he was attempting to get to his son.Cody took a few more steps and then collapsed.As he lay bleeding on the ground, he saw the three gunmen who entered his home, exit.The first was uninjured, the second was shot in the chest, and the third man, who Cody identified as the defendant, was shot in the neck.Cody testified that he saw the defendant, who stumbled out of the house with a mask pulled up over his face and a gun in his hand, fall to the ground, clutching his neck.He also testified that the defendant was the first one to go through the gate and to enter his home.The driver and the two other gunmen fled in their vehicle leaving the wounded defendant behind, and the woman fled in her vehicle.The defendant, who collapsed in front of Cody's home, was found wearing a bandana which had fallen away from his face.Next to him was a pair of gloves, and a gun was found lying under his body.The other wounded gunman who fled with the other robbers died from his wounds.

At trial, the defendant claimed that he had not been involved in any of the crimes committed at the Cody home.He testified that he accompanied the woman to the Cody home because she told him that she wanted to settle a business problem with Cody.While he waited in the car, another car arrived, containing a driver and three passengers, who he did not know.The driver exited the car and approached Cody and the woman.The defendant claimed that he watched from the woman's car as Cody, the woman, and the driver engaged in a heated conversation.The defendant contends that he exited the car and was urging the woman to leave, when one of the passengers of the other car approached him and pulled him towards the Cody house at gunpoint.The defendant testified that he was shot while resisting the gunman, who was attempting to force him into the house.He denied having any involvement with the attempted robbery or the shootings that occurred.

Ed Cody is a paraplegic as a result of this shooting.The gunman who died had a gunshot wound to the neck and abdomen.The bullets were found to have been fired from the firearm used by Derrick.

THE 911 CALLS

The first issue we address is whether the trial court erred by permitting the State to introduce a 911 tape containing two anonymous calls.As we conclude that the two calls qualify as spontaneous statements pursuant to section 90.803(1), Florida Statutes(2003), and/or excited utterances pursuant to section 90.803(2), Florida Statutes(2003), we find that they were properly admitted.

The two calls were made following the shooting of Ed Cody in the back, and the shots fired by Derrick.The first call was made one minute before Derrick's 911 call, and the second call was placed simultaneously with that of Derrick's.The anonymous calls were placed close to the violent events, thereby precluding an opportunity to contrive or misrepresent.Therefore, we find that the trial court properly admitted the two anonymous calls as either spontaneous statements or excited utterances.

As the calls were made to obtain assistance rather than in response to police questioning, we additionally conclude that they were nontestimonial in nature and, therefore, do not violate the Sixth Amendment or the holding in Crawford v. Washington,541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177(2004).SeeTowbridge v. State,898 So.2d 1205, 1206(Fla. 3d DCA2005)(holdingCrawford inapplicable to nontestimonial spontaneous statements);Herrera-Vega v. State,888 So.2d 66, 69(Fla. 5th DCA2004)("Whatever the United States Supreme Court eventually decides `testimonial' evidence consists of, it does not appear to include the spontaneous statements made by [the victim] to her mother while being dressed . . . ."), review denied,902 So.2d 790(Fla.2005);Lopez v. State,888 So.2d 693, 699(Fla. 1st DCA2004)("Many courts have concluded that a hearsay statement made in a 911 call is not testimonial, because the statement is not made in response to police questioning, and because the purpose of the call is to obtain assistance, not to make a record against someone.").We additionally agree with the Fifth District that the United States Supreme Court in Crawford did not foreclose the ability of individual states to develop hearsay laws that exempt nontestimonial statements from confrontation clause scrutiny.Herrera-Vega,888 So.2d at 69.As Florida law clearly provides for the admission of nontestimonial hearsay, which the two complained-of calls qualify as, we find no error in their admission.

THE DEA INVESTIGATION FILES

During the pendency of this case, the defendant attempted to obtain the production of the Drug Enforcement Administration ("DEA") investigative files of Ed Cody.Instead of subpoenaing the DEA, the defense filed a motion with the trial court requesting that it compel the State to produce them.We find that the trial court properly denied the motion as the files the defendant sought were not in the State's possession or control.

Rule 3.220(b)(1),Florida Rules of Criminal Procedure, requires the State to provide to the defense all information and material within its possession and control.The Florida Supreme Court has specifically interpreted the rule to include records in the State's constructive possession, including data it has the ability of obtaining "by virtue of the State being a party to any compact or agreement with the Federal Bureau of Investigation. . . ."State v. Coney,294 So.2d 82, 84(Fla.1973).As the State did not have the files sought in its actual or constructive possession (no showing was made that the State has a compact or agreement with the DEA), it was not required to produce the materials the defense sought.SeeState v. Miranda,777 So.2d 1173, 1174(Fla. 3d DCA2001)(holding that the trial court cannot compel the State to produce DEA records not in its custody or control).

THE ATTEMPTED MURDER OF ED CODY

The defendant was charged with the second degree felony murder of a co-perpetrator, Reginal Harris (Count I); attempted strongarm robbery (Count II); attempted armed robbery (Count III); use or display of a firearm during the commission of a felony (Count IV); and the attempted first degree murder with a deadly weapon of Ed Cody(Count V).He was found guilty as charged in Counts I through IV, and guilty of the lesser-included offense of attempted second degree murder for the shooting of Ed Cody in Count V.¹

The defendant claims that the evidence, when viewed in the light most favorable to the State, Pollen v. State,834 So.2d 380, 383(Fla. 3d DCA2003), is insufficient to hold him criminally liable as a principal for the attempted second degree murder of Ed Cody.We disagree.

The State's witnesses testified that when Ed Cody was shot, the defendant was either inside of the Cody home or lying wounded in the front yard.When Cody heard gunshots, he was being held at gunpoint outside of his home by the driver of the vehicle, who was attempting to restrain Cody by putting handcuffs on him, and the other three gunmen, including the defendant, were in his home.Upon hearing the gunshots, Ed Cody started running towards the house because he believed the gunmen were shooting at his son, Derrick.As he ran towards his house, the woman yelled for the driver to kill Cody because he had seen her face.The driver replied, "I will put him in a wheelchair," and fired twice, shooting Ed Cody in the back.Cody fell to the ground.When he looked up, he saw the shooter and the woman jump into the cars they arrived in and two of the robbers, running from the house.One of the robbers was carrying a gun and the other robber...