Dunn v. State, No. 82-566

CourtCourt of Appeal of Florida (US)
Writing for the CourtCOBB; SHARP; COWART; COWART
Citation454 So.2d 641
Decision Date19 July 1984
Docket NumberNo. 82-566
PartiesJulie Catherine DUNN, Appellant, v. STATE of Florida, Appellee.

Page 641

454 So.2d 641
Julie Catherine DUNN, Appellant,
v.
STATE of Florida, Appellee.
No. 82-566.
District Court of Appeal of Florida,
Fifth District.
July 19, 1984.
Rehearings Denied Aug. 22, 1984.

Page 642

James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.

COBB, Chief Judge.

The defendant, Julie Dunn, was convicted after jury trial of the second-degree murder of her boyfriend, Steven Flanagan. At trial the state proved, without dispute, that Dunn shot and killed Flanagan with a rifle in the home they shared. The state also introduced evidence from various witnesses that Dunn previously had threatened to kill Flanagan because of his philandering. This established the corpus delicti.

One witness, Edith Cope, testified that some six weeks after the shooting, Dunn, after extracting a promise of secrecy, confessed to her that she had "shot Steve on purpose" while he was sitting on the couch after she went into the bedroom and got the rifle. She admitted that he had not raped or beaten her as she had previously told the police. Dunn told Cope that she was upset and angry with Steve because the night before the shooting he again had been out with another woman. This testimony was admitted into evidence at trial without objection and its admissibility is not challenged on appeal.

This confession of guilt constituted direct, not circumstantial, evidence. Lee v. State, 362 So.2d 692 (Fla. 4th DCA 1978); McCormick, Handbook of the Law of Evidence § 185 (2d ed. 1972). Even in the absence of the confession, we would still affirm on authority of our recent opinion in Newberry v. State, 442 So.2d 334 (Fla. 5th DCA 1983). We reject, however, the views expressed by the special concurring opinion in regard to circumstantial evidence. Concurring opinions do not represent precedential authority.

AFFIRMED.

SHARP, J., concurs.

COWART, J., concurs specially with opinion.

COWART, Judge, concurring specially:

This case involves one of the most difficult questions regularly presented to the criminal trial judge: What is the difference between the sufficiency and the weight of evidence and, more particularly, what is the rule of law on a motion for a judgment of acquittal in a circumstantial evidence case and how should that rule be applied?

The State presented a circumstantial evidence case of murder against defendant

Page 643

(appellant) who asserted self-defense. As defendant was the only eyewitness to survive the event in question the case was essentially one of facts and circumstances presented by the State which implied a premeditated death against the testimonial evidence of defendant who asserted self-defense. The trial court denied a motion for a judgment of acquittal and the jury returned a verdict of second degree murder. Defendant claims the trial court erred in denying the judgment of acquittal because the State had not sufficiently negatived defendant's testimony as to self-defense. The majority affirms asserting that this is not a circumstantial evidence case because the defendant confessed her guilt.

This case cannot be properly disposed of on the basis that the defendant confessed her guilt. She did not. It is elementary that before any confession or admission of criminal guilt is even admissible into evidence the State must first prove the corpus delicti of the crime by independent prima facie evidence. Because the shooting or even killing of another person may be justifiable (see § 782.02 and ch. 776, Fla.Stat.) or excusable (see § 782.03, Fla.Stat.), the presumption of innocence acts to prevent proof of mere shooting or killing from being prima facie evidence of an unlawful homicide and the State must produce further evidence which implies a wrongful mental intent to the perpetrator. In this case, as in most such cases, the evidence that the killing was unlawful consists of circumstantial evidence as to the facts surrounding the killing and, particularly, as to the defendant's specific mental intent which is an essential constituent element of the unlawful homicide charged (first degree murder, § 782.04(1)(a)1., Fla.Stat.). The State did present a witness, Edith K. Cope, who testified that the defendant stated that the decedent, who was the defendant's live-in boyfriend, had beat up the defendant, had tied the defendant up with a satin pillowcase and had raped the defendant; that the decedent had threatened the defendant with a knife and had chased her through the house with a gun; that they had struggled over the gun and that when he dropped it, she had picked it up and that it just "went off." With telling discrepancies this was substantially the same story the defendant told the police and jury. 1 At best it was an admission that the defendant shot the decedent. She did not even admit she killed him much less did she "confess" that she intentionally and unlawfully killed him from a premeditated design. Obviously defendant's position was that the circumstances implied that the homicide was either justified or excusable and therefore not unlawful. The evidence that convinced the jury that the defendant unlawfully caused the decedent's death by an imminently dangerous act evincing a depraved mind regardless of human life (second degree murder, § 782.04(2), Fla.Stat.), was all circumstantial.

The process of weighing evidence involves determining the total convincing force and effect of all the evidence as to every issue and this includes weighing and comparing the strength of the implication of guilt as against the original presumption of innocence as augmented by the strength of any implication of innocence arising from circumstantial evidence as well as determining the accuracy and credibility of every witness and, in a criminal case, the reasonableness of any doubt as to guilt. The trier of the facts, in the application of common sense and general experience, may give some evidence great weight and other evidence little or no weight, may draw or decline to draw inferences, may consider inferences to be strong or weak, and on the basis of credibility or lack of credibility may accept or reject all or any part of the testimony of any witness, including that of

Page 644

the defendant whether or not such testimony is contradicted or refuted. Therefore, in a criminal jury trial all such matters are for the jury under proper instructions as to the law and are not matters to be decided as law by the trial court on motion or the appellate court on review.

Defendant cites many cases 2 in which appellate courts have encroached upon the province of the jury by determining as a matter of law either (a) that the jury could not believe or could not disbelieve the testimony of some particular witness, or (b) that some suggested possibility (hypothesis) of innocence sounded so reasonable to the appellate court that, as a matter of law, the jury, after weighing all the evidence and all possible inferences, was not allowed to disregard what the jury considered to be a slight or weak or remote possibility of innocence (which nearly always rests upon the credibility of the defendant's testimony) and to accept what the jury considered to be a strong or satisfying or overwhelming probability of guilt. The viability of the cases cited by defendant, note 2, supra, is questionable in view of better reasoned cases which recognize the jury question inherently involved. See, e.g., Williams v. State, 437 So.2d 133 (Fla.1983); Rose v. State, 425 So.2d 521 (Fla.1982), cert. den., 461 U.S. 909, 103 S.Ct. 1883, 76 L.Ed.2d 812 (1983); Tibbs v. State, 397 So.2d 1120 (Fla.1981), aff'd, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); 3 State v. Stewart, 404 So.2d 185 (Fla. 5th DCA 1981); Teague v. State, 390 So.2d 405 (Fla. 5th DCA 1980); Bouler v. State, 389 So.2d 1197 (Fla. 5th DCA 1980); Knight v. State, 392 So.2d 337 (Fla. 3d DCA 1981), review denied, 399 So.2d 1143 (Fla.1981); Lowery v. State, 450 So.2d 587 (Fla. 1st DCA 1984).

The difference between the view represented by the line of cases cited by defendant (note 2, supra ) and the view represented by the line of cases cited in the text above, while subtle, is not merely a semantical one, as asserted in Newberry v. State, 442 So.2d 334 (Fla. 5th DCA 1983), 4 but is real and signifies change and improvement in the law.

Until recently, most Florida cases considered the circumstantial evidence rule to be a rule of law concerning which the trial

Page 645

judge had to instruct the jury and which the trial judge had to apply, as a matter of law, in ruling on motions for judgment of acquittal and motions for new trial, and which appellate courts should apply when reviewing orders denying such motions and when considering the sufficiency of the evidence on appeal. Many of the cases cited in note 2, supra, are examples of that view. Cases cited in the text above appear to constitute a substantial and astute shift toward a recognition that circumstantial evidence is not so different in kind from direct or testimonial evidence as will support any special procedural or substantive rule of law.

More than twenty years ago a jury instruction on circumstantial evidence was absolutely essential and appellate courts, then as later, did not hesitate to review the circumstantial evidence in a case and to search for some hypothesis or possibility of innocence and, finding it, to judge it to be reasonable and to reverse the case without regard to the weight or strength of the inference supporting the jury's finding of guilt. Although the strength of an inference relates to the weight of the evidence rather than its sufficiency, before Tibbs v. State, 397 So.2d 1120 (Fla.1981), such cases were usually reversed for a new trial. It has been generally held that in a circumstantial evidence case regardless of the...

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47 practice notes
  • Mace v. M&T Bank, Case No. 2D16-3381
    • United States
    • Court of Appeal of Florida (US)
    • March 25, 2020
    ...it is "material" and has a "definite probative value." Savage v. State, 120 So. 3d 619, 621 (Fla. 2d DCA 2013) (quoting Dunn v. State, 454 So. 2d 641, 649 n.11 (Fla. 5th DCA 1984) (Cowart, J., concurring specially)); see also Lonergan v. Estate of Budahazi, 669 So. 2d 1062, 1064 (Fla. 5th D......
  • Knight v. State, No. 5D11–2875.
    • United States
    • Court of Appeal of Florida (US)
    • February 27, 2013
    ...in a well-researched concurring opinion listing dozens of conflicting opinions from Florida's appellate courts. See Dunn v. State, 454 So.2d 641 (Fla. 5th DCA 1984) (Cowart, J., concurring specially). As Judge Cowart explained: Defendant cites many cases in which appellate courts have encro......
  • Thomas v. State, No. 86-1797
    • United States
    • Court of Appeal of Florida (US)
    • September 17, 1987
    ...2211, 72 L.Ed.2d 652 (1982); Herman v. State, 472 So.2d 770 (Fla. 5th DCA 1985), rev. denied, 482 So.2d 348 (Fla.1986); Dunn v. State, 454 So.2d 641 (Fla. 5th DCA 1984); State v. Stewart, 404 So.2d 185 (Fla. 5th DCA 1981); Teague v. State, 390 So.2d 405 (Fla. 5th DCA 1980); Bouler v. State,......
  • Shrader v. State, Case No. 2D13-2712
    • United States
    • Court of Appeal of Florida (US)
    • August 23, 2019
    ...Supreme Court provided in Knight in an area of the law where clarity on legal standards holds a particular premium. Cf. Dunn v. State, 454 So. 2d 641, 642 (Fla. 5th DCA 1984) (Cowart, J., concurring specially) ("This case involves one of the most difficult questions regularly presented to t......
  • Request a trial to view additional results
46 cases
  • Mace v. M&T Bank, Case No. 2D16-3381
    • United States
    • Court of Appeal of Florida (US)
    • March 25, 2020
    ...it is "material" and has a "definite probative value." Savage v. State, 120 So. 3d 619, 621 (Fla. 2d DCA 2013) (quoting Dunn v. State, 454 So. 2d 641, 649 n.11 (Fla. 5th DCA 1984) (Cowart, J., concurring specially)); see also Lonergan v. Estate of Budahazi, 669 So. 2d 1062, 1064 (Fla. 5th D......
  • Knight v. State, No. 5D11–2875.
    • United States
    • Court of Appeal of Florida (US)
    • February 27, 2013
    ...in a well-researched concurring opinion listing dozens of conflicting opinions from Florida's appellate courts. See Dunn v. State, 454 So.2d 641 (Fla. 5th DCA 1984) (Cowart, J., concurring specially). As Judge Cowart explained: Defendant cites many cases in which appellate courts have encro......
  • Thomas v. State, No. 86-1797
    • United States
    • Court of Appeal of Florida (US)
    • September 17, 1987
    ...2211, 72 L.Ed.2d 652 (1982); Herman v. State, 472 So.2d 770 (Fla. 5th DCA 1985), rev. denied, 482 So.2d 348 (Fla.1986); Dunn v. State, 454 So.2d 641 (Fla. 5th DCA 1984); State v. Stewart, 404 So.2d 185 (Fla. 5th DCA 1981); Teague v. State, 390 So.2d 405 (Fla. 5th DCA 1980); Bouler v. State,......
  • Shrader v. State, Case No. 2D13-2712
    • United States
    • Court of Appeal of Florida (US)
    • August 23, 2019
    ...Supreme Court provided in Knight in an area of the law where clarity on legal standards holds a particular premium. Cf. Dunn v. State, 454 So. 2d 641, 642 (Fla. 5th DCA 1984) (Cowart, J., concurring specially) ("This case involves one of the most difficult questions regularly presented to t......
  • Request a trial to view additional results

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