Franklin v. State

• Decision Date: 16 December 1969
• Docket Number: No. 68-1028,68-1028
• Citation: Franklin v. State, 229 So.2d 892 (Fla. App. 1969)
• Parties: Lawrence FRANKLIN, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 892

229 So.2d 892

Lawrence FRANKLIN, Appellant, v.The STATE of Florida, Appellee.

No. 68-1028.

District Court of Appeal of Florida, Third District.

Dec. 16, 1969.

Rehearing Denied Jan. 20, 1970.

Philip Carlton, Jr., and George D. Gold, Miami, for appellant.

Earl Faircloth, Atty. Gen., and Melvin Grossman, Asst. Atty. Gen., for appellee.

Before PEARSON, C. J., and BARKDULL and HENDRY, JJ.

PER CURIAM.

Appellant was convicted of first degree murder with a recommendation of mercy.The homicide in question occurred during an armed robbery of a liquor store, the actual perpetrator of the act being a codefendant charged in the original indictment, and the appellant being responsible under the provisions of § 776.011, Fla.Stat., F.S.A.

The appellant has presented several points on appeal in which error is urged, among which are the following: That there was insufficient evidence to support the jury's verdict.An examination of the record and reasonable inferences therefrom reveal that the appellant, while in the company of two men, drove to the bar and package store.The premises had at least two outside doors and was divided inside between the package store and the bar.However, it was constructed in such fashion that one attendant could service both facilities and, to a degree, each facility was observable from the other.When the appellant and his two cohorts arrived at the scene, one entered the package store by its entrance; the appellant and another entered through the bar entrance.The latter two ordered two beers and, after consuming same, moved to the bar exit but remained in the doorway, surveying the patrons of the bar, with their hands under their shirts.At about this time, their companion pulled a gun on the attendant in the package store and ultimately killed him.Thereafter, all three departed the scene and journeyed to the house of a girlfriend of one of the culprits, wherein the appellant agreed to take the blame for the homicide.

The State presented sufficient evidence to establish beyond and to the exclusion of a reasonable doubt that the appellant was in the bar when the robbery and shooting were taking place.The only question of fact remaining for the jury to resolve was whether the appellant participated in the robbery.

None of the persons in the bar whom the State called as witnesses thought that the appellant was a participant at the time the robbery occurred.But they gave testimony from which it could be inferred that the appellant was a participant.

The girlfriend of the man who held the gun used in the robbery and who fired the shot which killed the attendant testified in substance that the appellant and the third man allegedly party to the robbery told her that both of them had taken part in the robbery.

If the case for the State had ended there and the jury had found the appellant guilty, we would affirm the judgment of guilt appealed, there being sufficient evidence and reasonable inferences therefrom to sustain the verdict.Sylvia v. State, Fla.App.1968, 210 So.2d 286;Sellers v. State, Fla.App.1968, 212 So.2d 659;Finney v. State, Fla.App.1969, 220 So.2d 673.But the trial court, over the appellant's objection, admitted the testimony of two victims of robberies that the appellant had allegedly committed in Ft. Myers.That testimony presented the jury with no additional information relevant to the issue of the appellant's participation in the robbery in question, other than to show a propensity ¹ on the part of the appellant to commit robbery.

The rule concerning the admissibility of evidence concerning criminal acts (apart from the act for which a defendant is being tried) is set forth in Williams v. State, Fla.1959, 110 So.2d 654.All evidence, including evidence of other criminal acts, is admissible if it is relevant to a factual issue in the case unless its sole relevance is to prove propensity to commit a crime.We understand this to mean that a court must admit evidence that a defendant has committed other criminal acts unless the defendant can show reason why it should not be admitted.The burden of showing the evidence ought to be excluded is on the defendant.He must raise the objection that the evidence is irrelevant and prejudicial, i.e., that it shows mere propensity to commit a crime.The burden then shifts to the State to show that the evidence is relevant to a factual issue and is not being introduced for the purpose of showing mere propensity.It is convenient for the State to meet this burden by showing that the criminal act falls into a familiar category, e.g., to prove identity, plan, common scheme or design.The foregoing categories we repeat are given by way of example and not by way of limitation.Evidence of another criminal act may not fall into one of the foregoing categories and yet still be relevant to a factual issue in a case.

In the present case, the defense met its burden by objecting to the proffered testimony concerning two robberies committed in Ft. Myers, and urge that the sole effect would be to prejudice the jury by showing that the appellant had propensity to commit a crime.In return, the State contended the evidence was admissible because its purpose was 'to show the identity of the defendant's plan, scheme or design to appropriate the property of others', relying on Griffin v. State, Fla.App.1960, 124 So.2d 38, andConey v. State, Fla.App.1966, 193 So.2d 57.The court admitted the testimony on the following basis: 'I think the evidence would be admissible.I think that normally it has some tendency to show the propensities to take property from others.'

It is elemental that a defendant cannot be convicted of having committed a particular robbery solely by showing that the defendant committed other robberies.But he could be convicted by a showing that there is some relationship, similarity, some common...