DeFreitas v. State

• Decision Date: 22 October 1997
• Docket Number: No. 95-3976,95-3976
• Parties: 22 Fla. L. Weekly D2462 William DeFREITAS, III, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 593

701 So.2d 593

22 Fla. L. Weekly D2462

William DeFREITAS, III, Appellant, v. STATE of Florida, Appellee.

No. 95-3976.

District Court of Appeal of Florida,

Fourth District.

Oct. 22, 1997.

Bruce S. Rogow and Beverly Pohl of Bruce S. Rogow, P.A., Fort Lauderdale, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.

BAKER, MOSES, Jr., Associate Judge.

Appellant, William DeFreitas, III, was found guilty by a jury of two counts of aggravated assault with a firearm. Based upon the jury's verdict, he was sentenced to serve a mandatory minimum of three years in the state prison system followed by two years probation. We reverse and remand for new trial, choosing to discuss only two of the three points which we duly considered.

The instant case emanated from an altercation in which Appellant allegedly pointed a laser-sighted firearm at two individuals. At the trial below, a total of ten witnesses were called to testify, six were called by the state and four were called by Appellant. The facts were seriously disputed and vigorously contested. We have chosen to summarize the critical testimony on a witness by witness basis.

Appellant testified, inter alia, that on June 3, 1994, in response to a telephone call he received that evening from his former girlfriend, Karen Perrone, ¹ he went to the home of Natalie and Brett Fagan. Upon his arrival, he observed several individuals in the driveway area of the home. He stopped to see if Perrone was among them. When he did not see her, he drove to the end of the street, turned around and drove back past the home. As he slowly drove past the home, the individuals in the driveway area started toward his car in a threatening manner. ² As they approached his car, he retrieved his handgun and pointed it in their general direction as they were actually approaching him. He explained that his actions were motivated by his own fear of these individuals as he felt threatened by their actions. He testified that he believed the situation justified at least the removal of his handgun from its holster. He denied threatening anyone with the gun or pointing it directly at anyone.

Appellant possessed a concealed weapon's permit and was lawfully in possession of the handgun on the night in question. He contended that he pointed the firearm in lawful self-defense without any specific intent whatsoever to do violence to anyone.

Karen Perrone, a 22-year-old receptionist and former girlfriend of Appellant, testified that she had indeed telephoned Appellant on the evening in question and desired to speak with him. ³ She testified further that she observed six or seven individuals approaching Appellant's car. She described their actions in the following manner: "egging him on, throwing their arms out, and saying come on." Additionally, she testified that one of the individuals, Brett Fagan, had a gun or rifle ⁴ as he approached Appellant's car. She knew Appellant owned a handgun and had a permit to carry it. She also knew that the handgun was equipped with a laser sight. However, she testified that at the time of the altercation, she did not see any laser pointed at anyone nor did she see Appellant in possession of any handgun.

Appellant was not charged with the crime of stalking Perrone, nor was he charged with aggravated assault upon her. We have also noted that Brett Fagan, the individual Perrone said was in possession of a firearm as he approached Appellant's car, did not testify at trial.

Natalie Fagan, a 24-year-old employee of AmTrust Bank, testified, inter alia, that she saw Appellant park his car and point his gun at Victoria Palozzola. She said she actually saw the red light or dot from the laser and that it was on the bodies of both Palozzola and Miller.

Leslie Tropepe, a graduate of the University of Miami, testified, inter alia, that Appellant followed Perrone to the Fagan's residence and Perrone "freaked out" when she saw him. She and others were yelling and screaming words to the effect that "he's here to get Karen." She testified that she saw a red light coming from Appellant's car. She also said that Appellant stopped his car and pulled a gun and pointed it in her direction. She testified further that she and her friends were walking toward Appellant's car when Appellant pulled his gun and pointed it at them. Once they saw the gun, she said they turned away.

Victoria Palozzola, a 21-year-old young lady, testified, that on the night in question, she noticed that someone in a white car was following her and Perrone to the Fagan's home. She testified that Appellant pointed his firearm at her. She also said she saw the laser dot from the firearm on both her body and Miller's body. She testified further that she was afraid and called the police.

Herbert Miller, a motorcycle mechanic, testified, inter alia, that Appellant pointed a firearm at him. He also testified that at the time the firearm was pointed at him, he yelled Coconut Creek Police and held up his hands because he did not want to get shot and he thought Appellant would not shoot him if he believed that he was a law enforcement officer. He also testified the laser dot from the firearm at one point was on his chest and that he was afraid.

The two issues which we have chosen to discuss are: (1) whether or not the evidence was sufficient to sustain a conviction for the crime of aggravated assault with a firearm as charged, and (2) whether or not the prosecuting attorney was guilty of misconduct of such a nature and character as to constitute fundamental error.

Appellant contends that the evidence was insufficient to sustain his convictions for aggravated assault with a firearm. More particularly, he contends that the state failed to prove beyond a reasonable doubt the necessary and critical element of specific intent to do violence to the person of another. We disagree.

We have considered the record in its entirety and in so doing have concluded that the evidence was sufficient to support the convictions; however, as to the issue of specific intent, the evidence was extremely close. Additionally, the evidence was extremely close as to whether or not the facts more closely fit the crime of improper exhibition of a dangerous weapon as opposed to aggravated assault. There is a vast difference between the two offenses, in that aggravated assault with a firearm is punishable by a mandatory minimum sentence of three years incarceration in the state prison system without the possibility of parole. There is no judicial discretion as to the mandatory minimum sentence. On the other hand, improper exhibition of a dangerous weapon is a first-degree misdemeanor and is punishable as such.

Appellant next contends, although he acknowledges that he did not make a proper legal objection nor a request for a curative instruction or a motion for mistrial, that he is nevertheless entitled to a reversal of his convictions and a new trial because the prosecuting attorney was guilty of numerous acts of prosecutorial misconduct of such a nature and character that the cumulative and collective effect rose to the level of fundamental error. We agree.

In Ryan v. State, 457 So.2d 1084, 1091 (Fla. 4th DCA 1984), we answered the same question presented in the instant appeal, the question being: "When does prosecutorial misconduct amount to fundamental error and thus becomes an exception to the contemporaneous objection and motion for mistrial rule?" Our answer to this question has not changed and remains as follows: "When the prosecutorial argument taken as a whole is 'of such a character that neither rebuke nor retraction may entirely destroy their sinister influence ... a new trial should be granted, regardless of the lack of objection or exception.' " Id. at 1091 (quoting Peterson v. State, 376 So.2d 1230, 1234 (Fla. 4th DCA 1979)). We defined fundamental error, which can be considered on appeal even without a proper objection or preservation in the lower court, as error which goes to the foundation of the case or goes to the merits of the cause of action. Ryan, 457 So.2d at 1091.

In Ryan, we reversed a criminal conviction because of prosecutorial misconduct which occurred exclusively during the prosecutor's closing argument to the jury. In so doing, we noted that defense counsel failed to object to many of the prosecutor's egregious comments. Nevertheless, we found the following conduct rose to the level of fundamental error and ordered a new trial:

PROSECUTORIAL MISCONDUCT # 1

1) Appeal to Bias, Passion, and Prejudice

In Ryan, the prosecuting attorney said during final argument:

But the rich get preferential treatment. She was not handcuffed on the way to jail, just as any one else would be treated. Her Palm Beach lawyer boyfriend comes up and wants the money back and they give that back, because she comes from money, and unconsciously people tend to be subservient. And we are asking you not to be subservient to money.

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But we have shown that a rich person's daughter did do this. We have shown that a rich person's daughter didn't have much money herself. Maybe Daddy had to work for his money, way back when, but the children ought to not live up to their parent's potential. You've seen that before. Why should she, when Patty Ryan can go out and make hundreds of thousands of dollars, according to Carter Osleber, in this, why should she toil like everyone else?

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Now, will the truth surface? Will you people do something that later in your lives you'll regret? Will you listen to the man from Tampa, and he can go back to Tampa, and we can all still live here in this community; and he says, "let her go. Let her walk out the door, because the State's case is not there." That this is all figments of someone's imagination. Are you going to do that?

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