Charles v. State, 4D04-4709.

• Decision Date: 13 December 2006
• Docket Number: No. 4D04-4709.,4D04-4709.
• Citation: 945 So.2d 579
• Parties: Job CHARLES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 579

945 So.2d 579

Job CHARLES, Appellant, v. STATE of Florida, Appellee.

No. 4D04-4709.

District Court of Appeal of Florida, Fourth District.

December 13, 2006.

Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.

STEVENSON, C.J.

Job Charles was tried by jury and convicted of second degree murder, a lesser included offense of the charged first degree murder. Charles now appeals, arguing that the trial court's refusal to give his requested "independent acts" instruction and an erroneous evidentiary ruling compel reversal of his conviction. We find merit in these arguments and reverse.

Jean-Marcedly Lamarre was shot and killed on June 2, 2000. In prosecuting Charles for first degree murder, the State relied upon both premeditated and felony murder theories. In the weeks prior to Lamarre's death, Frantz Frederic made inquiries concerning Lamarre's whereabouts, testifying that he had loaned Lamarre $1500 and that Lamarre had promised to either repay him the money or give him cocaine. According to Frederic, Lamarre was a drug dealer. Frederic admitted that he found out Lamarre was staying with an ex-girlfriend, Melony Richard, and that he went to Richard's home on June 2, 2000, to get his money.

Frederic testified he could not simply go knock on the door because Richard would tell him Lamarre was not at home; the only way he was going to get his money was to rob Lamarre and he intended to enter the house and take whatever he found. On the morning of June 2, Frederic went to Charles's home, explained that Lamarre was "dodging" him and owed him money, that there was cocaine in the house, and that he wanted to go in and take whatever they found. According to Frederic, Charles agreed to help. After Charles indicated he did not want to enter the house alone, the pair recruited Kerlin Cherenfant. Frederic repeated the story to Cherenfant. Cherenfant got his gun and joined Frederic and Charles. Frederic testified the three agreed to split whatever they found in the house. The trio ultimately recruited a fourth man, Ulrich Leo. After Frederic re-told his story to Leo, Leo got his gun and joined them. The foursome drove to Richard's home.

Frederic testified he dropped Charles, Cherenfant, and Leo in the intersection and instructed them not to hurt anyone. Frederic was to drive around the block until they returned. While driving, Frederic heard a gunshot. He saw Lamarre run out of the house and fall in the street. Then, he saw Charles and Cherenfant running out and, seconds after that, he saw Leo. The foursome fled. According to Frederic, during their escape, Charles asked Cherenfant why he had shot Lamarre.

Frederic was eventually arrested for Lamarre's murder and, initially, named Dionny Desir, who had been killed two weeks after the incident, as the trigger man. Frederic later recanted this story, identifying Charles, Cherenfant, and Leo as the perpetrators. After Frederic identified Charles, police compared Charles's prints to those found on a battery that was embedded with glass and appeared to have been used to shatter a glass door at the rear of the home to gain entry. The prints matched and Charles was arrested.

Charles gave a taped statement to police, insisting there was no plan to commit a "robbery." Despite this, Charles admitted Frederic told them Lamarre "pushed kilos" and they should pick up whatever they found in the house. He also told police he owed Frederic $50 and that, if he helped, Frederic had agreed to wipe out the debt, plus he would get a share of any money found. According to Charles, Frederic had come to him looking for a gun. Charles did not have one and suggested Frederic talk to Leo. Charles accompanied Frederic to Leo's home. Leo got his gun and Frederic again explained that Lamarre owed him money and was avoiding him. In Charles's version of events, the trio recruited Cherenfant because Charles did not want Leo to enter the home alone. In his taped statement, Charles insisted Leo and Cherenfant were "plotting [a] scheme" and they involved him because they needed a lookout.

In the taped statement, Charles told police the plan was to "beat up" Lamarre and to scare him. Charles went to the north side of the house, heard the voice of a man and a woman, and reported this to Cherenfant and Leo, who instructed Charles to break the glass door. In the taped statement, Charles admitted he picked up a nearby car battery and threw it through the door. Charles told police he ran to the front of the house, while Leo and Cherenfant went inside. Charles did not see Frederic. When he turned to go back to the house to tell Leo and Cherenfant that Frederic had abandoned them, he heard a gun shot. Charles changed course and headed back to the street. This time, Frederic was there. Charles got in the car and, when Frederic indicated he was leaving, Charles told him not to because they did not know what had happened. Charles then saw Lamarre run into the street and collapse. Cherenfant and Leo were not far behind and both men jumped in the car. Charles told police that, according to Leo, Cherenfant had fired the shot.

By the time of trial, Charles's version of events had changed. Now, according to Charles, the plan had been only to "scare" Lamarre into repaying the debt he owed Frederic. And, in this version, Charles had not used the car battery to break the glass door. Rather, Charles testified he had simply pushed it up to the house and stood on it so he could get a better look inside. Charles told the jury that, when he heard two voices in the house, he told Leo and Cherenfant he did not think it was a good time to confront Lamarre and began heading back towards the front of the house and the street; it was then that he heard a crash, presumably the glass breaking. Charles did not initially see Frederic and turned back toward the house to tell the others. Then, he heard a shot. At trial, Charles testified the shot "surprised" him because Frederic had told Cherenfant and Leo not to load the guns and, prior to hearing the shot, he did not know the guns were loaded. Charles insisted he received no benefit from the plan to scare Lamarre and denied he owed Frederic money.

Richard identified Leo as the man she saw going out the bedroom window of her home. Other than the prints on the battery, there was no physical evidence placing Charles at or in the home.

The Independent Acts Instruction

The State conceded Charles was not the man who pulled the trigger. Nonetheless, the State argued Charles was guilty of first degree murder, relying upon the law of felony murder and principals. The statutory definition of first degree murder includes "[t]he unlawful killing of a human being . . . [w]hen committed by a person engaged in the perpetration of, or in the attempt to perpetrate" certain enumerated felonies, including burglary and robbery. § 782.04(1)(a)2.d., e., Fla. Stat. (2000). 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." R.J.K. v. State, 928 So.2d 499, 503 (Fla. 2d DCA 2006); see also Bryant v. State, 412 So.2d 347, 350 (Fla.1982) ("[T]he felony murder rule and the law of principles [sic] combine to make a felon liable for the acts of his co-felons.").

In support of its law of principals and felony murder rule theories, the State relied upon evidence that (1) Charles took Frederic to Leo to help him find a gun and (2) once at the victim's home, Charles looked in the windows to determine how many people were inside, relayed this information to Cherenfant and Leo, both of whom had guns, used a car battery to shatter the glass door, returned to warn Leo and Cherenfant that Frederic had left, and, finally, after hearing the shot, convinced Frederic not to abandon Leo and Cherenfant. Charles, though, testified that the only plan was to knock on the door and use the guns to scare Lamarre into paying the debt and that, as a consequence of Frederic's instructions, he believed the guns were not loaded. Charles testified that after he realized two people were home, he told the others he did not think it was a good time and walked away from the house. Charles denied he used the battery to break the door and testified he had walked away by the time he heard the glass break and the subsequent shot. In light of this evidence, Charles argued the forced...