Cannon v. State

Decision Date12 January 2009
Docket NumberNo. 1D07-2929.,1D07-2929.
PartiesDonna CANNON, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Barbara Sanders, Apalachicola, for Appellant.

Bill McCollum, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.

DAVIS, J.

Appellant, Donna Cannon, challenges her convictions and sentences for armed robbery with a firearm and first-degree murder. Appellant argued several grounds on appeal, but we write only to address her argument that the trial court abused its discretion in denying her request for an independent act instruction.

At trial, Terrell Powell, Appellant's cousin, testified that Appellant convinced him that he needed to rob someone because she was low on money. In preparation for the robbery, Powell stole a shotgun and money to purchase ammunition while Appellant acted as a lookout. Because Powell was only thirteen years old at the time, Appellant, who was twenty-eight years old, purchased the ammunition. Powell also testified that Appellant wanted him to rob Aaron Wilson because she believed that he had money. Appellant gave Powell socks to wear on his hands on the night of the robbery to prevent him from leaving fingerprints. When Powell arrived at the home of Aaron Wilson, he believed that the house was empty. After waiting outside the house, Powell saw a car park behind the house and a man enter the house. Powell approached the man with the shotgun when the man exited the house to sit on the back steps. Powell testified that he shot the man because the man swung a pipe at Powell. Powell grabbed the man's wallet and went back to Appellant's house. Powell testified that he gave the wallet to Appellant. The man Appellant shot was Moses Wilson, Aaron's brother.

At trial, defense counsel asked the court to read the jury instruction for an independent act because the murder of Moses Wilson was outside the scope of Appellant's and Powell's plan to rob Aaron Wilson. The trial court denied the request. The jury convicted Appellant of armed robbery with a firearm and first-degree murder. This appeal follows.

The trial court's decision to withhold a jury instruction is reviewed for an abuse of discretion. Davis v. State, 922 So.2d 438, 444 (Fla. 5th DCA 2006). The trial court's discretion is limited because a criminal defendant is entitled to have the jury instructed on his theory of defense if there is any evidence to support the defense. Id. The trial court should not weigh the evidence to determine whether the instruction is appropriate. Charles v. State, 945 So.2d 579, 582 (Fla. 4th DCA 2006).

The independent act doctrine is applicable "when one cofelon, who previously participated in a common plan, does not participate in acts committed by his cofelon, `which fall outside of, and are foreign to, the common design of the original collaboration.'" Ray v. State, 755 So.2d 604, 609 (Fla.2000) (quoting Ward v. State, 568 So.2d 452, 453 (Fla. 3d DCA 1990)). "Where, however, the defendant was a willing participant in the underlying felony and the murder resulted from forces which they set in motion, no independent act instruction is appropriate." Id.

In this case, Powell testified that Appellant helped plan, and even encouraged, the execution of this armed robbery. Powell testified that they never planned to murder anyone and that he only shot Moses Wilson because Moses swung a pipe at him. However, because the murder was the result of the forces set in motion by Powell's and Appellant's plan to commit armed robbery, it is properly considered a part of their common plan. Jones v. State, 804 So.2d 551, 552 (Fla. 3d DCA 2002) ("A killing in the face of either verbal or physical resistance by a victim is properly viewed as being within the original criminal design."). The fact that Powell robbed and shot Moses Wilson, instead of Aaron Wilson, does not remove the murder from the scope of the original plan because the murder was intrinsically related to, and arose from, the original plan to commit armed robbery at the Wilsons' home. Shaw v. State, 824 So.2d 265, 270 (Fla. 4th DCA 2002) (holding that a co-defendant's murder of a taxi cab driver after the driver resisted the robbery arose from, and was intrinsically related to, the planned armed robbery).

The trial court did not abuse its discretion in denying Appellant's request for an independent act instruction because there was no evidence in the record to support this theory. There was no evidence to show that Powell abandoned the original plan to rob Aaron Wilson, and he never testified that he knew at the time of the shooting that the man he shot was not Aaron Wilson. Moreover, a shooting during an armed robbery is a foreseeable event. Washington v. State, 873 So.2d 1268, 1270 (Fla. 4th DCA 2004) ("A shooting that occurs during an armed robbery with a firearm does not exceed the scope of the armed robbery so that an independent act instruction is required."); see also Perez v. State, 711 So.2d 1215 (Fla. 3d DCA 1998); Dell v. State, 661 So.2d 1305 (Fla. 3d DCA 1995). We, therefore, affirm Appellant's convictions and sentences.

ALLEN, J., concurs; BENTON, J., dissents with opinion.

BENTON, J., dissenting.

Donna Cannon was not present when her then 13-year-old cousin, Terrell Powell, shot William Moses Wilson at close range, took his wallet from his trousers, and left him to bleed to death. The prosecution proceeded on the theory that her involvement in preparations for a robbery made her a principal to Moses Williams' robbery, see § 777.011, Fla. Stat. (2003) and thus criminally responsible, not only for Moses Wilson's robbery, but also, under the felony murder rule,1 for his death. But, while Ms. Cannon and Terrell Powell had planned a robbery together, it was not this one, according to the state's own evidence.

The question thus arose whether the robbery that in fact occurred was "outside of and not a reasonably foreseeable consequence of" the cousins' common design. Fla. Std. Jury Instr. (Crim.) 3.6(l). Quite apart from the felony murder rule2 was the preliminary issue of what robbery the pair had intended to accomplish. Because the trial court improperly took this preliminary question from the jury, when it denied the appellant's request for an independent act instruction, I respectfully dissent.

At trial, defense counsel requested that the trial court read an independent act instruction to the jury. She argued that the evidence supported a defense theory that appellant had agreed and contemplated only that Powell would rob Aaron Wilson, and that Powell acted outside the scope of the agreement when he decided on his own to shoot and rob Moses Wilson, and did so unforeseeably. She contended she was entitled to an independent act instruction3 because the evidence supported the inference that Powell's robbing and shooting Moses Wilson, rather than robbing Aaron Wilson as planned, was neither contemplated by her nor reasonably foreseeable.

Whenever any view of the evidence supports a theory of defense valid under state law, the trial court must grant a criminal defendant's request that the jury be instructed on that theory. Davis v. State, 922 So.2d 438, 444 (Fla. 5th DCA 2006); see also Beachy v. State, 837 So.2d 1152, 1152 (Fla. 1st DCA 2003); Charles v. State, 945 So.2d 579, 582 (Fla. 4th DCA 2006); Gregory v. State, 937 So.2d 180, 182 (Fla. 4th DCA 2006) ("A criminal defendant is entitled to have the jury instructed on the law applicable to his or her theory of defense where there is any evidence to support it, no matter how weak or flimsy."). Appellate courts review rulings on requests for jury instructions for abuse of discretion. See Charles, 945 So.2d at 582; Davis, 922 So.2d at 444. In criminal cases however, "the trial court's discretion in this regard is rather narrow...." Id.

The jury should have been instructed to decide whether Moses Wilson's robbery and murder were the independent acts of Powell, perpetrated outside what Powell and Ms. Cannon had planned—Aaron Wilson's robbery—and an unforeseeable consequence of their plan. Powell testified he had never met Moses Wilson, that he had never talked to him, that he did not "kn[o]w him or anything like that." There was no evidence in this record—and the prosecutor did not contend—that Powell mistook the victim for Aaron Wilson.

The state argues Ms. Cannon was vicariously liable for Terrell Powell's robbery and murder4 of Moses Wilson, on the theory that she is "liable for any acts, whether [s]he knew of them ahead of time or not, committed by an accomplice in furtherance of" a common criminal design to commit a crime. Dell v. State, 661 So.2d 1305, 1306 (Fla. 3d DCA 1995) (quoting Diaz v. State, 600 So.2d 529, 530 (Fla. 3d DCA 1992)); see also Jacobs v. State, 396 So.2d 713, 716 (Fla.1981) ("One who participates with another in a common criminal scheme is guilty of all crimes committed in furtherance of that scheme regardless of whether he or she physically participates in that crime." (citing Pope v. State, 84 Fla. 428, 94 So. 865 (1922))); Charles, 945 So.2d at 581-82 ("Under the law of principals, a defendant will be treated as if he did all the acts performed by the others involved in the perpetration of a crime if (1) the defendant `ha[d] a conscious intent that the crime be done' and (2) the defendant `d[id] some act or sa[id] some word which was intended to and d[id] incite, cause, encourage, assist, or advise another person to actually commit the crime.'" (quoting R.J.K. v. State, 928 So.2d 499, 503 (Fla. 2d DCA 2006))).

Ms. Cannon was, to be sure, thoroughly implicated (albeit by the testimony of a single witness, the admitted perpetrator) in planning and preparing for a robbery.5 But the intended victim was Aaron Wilson, who shared his home in rural Gadsden County with his wife, stepdaughter, grandson, and a brother, Moses...

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2 cases
  • Bullard v. State
    • United States
    • Florida District Court of Appeals
    • December 1, 2021
    ... ... Appellant is mistaken. Even if the jury believed that another ... co-felon shot the victim, the independent act defense would ... not have been appropriate because homicide is a foreseeable ... outcome of an armed robbery. See Cannon v. State, 18 ... So.3d 562, 564 (Fla. 1st DCA 2009) (holding the independent ... act instruction is not appropriate where one takes part in an ... armed robbery that resulted in murder ... from forces that they set in motion). Because this defense ... was not ... ...
  • Bullard v. State
    • United States
    • Florida District Court of Appeals
    • December 1, 2021
    ...act defense would not have been appropriate because homicide is a foreseeable outcome of an armed robbery. See Cannon v. State , 18 So. 3d 562, 564 (Fla. 1st DCA 2009) (holding the independent act instruction is not appropriate where one takes part in an armed robbery that resulted in murde......

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