Gale v. State, 97-03380.
| Decision Date | 15 January 1999 |
| Docket Number | No. 97-03380.,97-03380. |
| Citation | 726 So.2d 328 |
| Parties | Milton GALE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Pat T. Dicesare, II, of Dicesare, Davidson & Barker, P.A., Lakeland, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Anne E. Sheer, Assistant Attorney General, Tampa, for Appellee.
Milton Gale argues that his convictions for three counts of robbery with a firearm must be set aside because the evidence was insufficient to support the verdict and judgment. We agree, reverse Gale's convictions, and direct the trial court to discharge him. Our resolution of this issue makes it unnecessary to discuss the other points Gale raised on appeal.
The charges against Gale stemmed from a robbery at a motel in St. Petersburg. The evidence at trial showed that two men or boys, wearing masks and carrying guns, entered the motel at about 5:10 p.m. They robbed the desk clerk and two guests. None of the victims could identify the robbers. The State also introduced a videotape taken from a security camera. It recorded a green Isuzu Rodeo driving through the motel parking lot at 5:06 p.m.
Shortly after the robbery, Ms. Dixon, who lived near the motel, saw two boys running down the street wearing masks. They removed the masks and threw them in a trash can. The witness later identified the boys from a police photo-pak as David Shavers and Dontrell Baker, Gale's codefendants.
Several young men in the neighborhood also saw the boys dispose of something in Dixon's trash can and place other items in a dumpster. They investigated, spied the masks in Dixon's trash, and then found guns and a T-shirt in the dumpster. At that point, a man drove up in a green Isuzu Rodeo with vanity license plates that read "Milk Man." He got out of the truck, carrying what appeared to be a CB radio, and told the young men about the motel robbery. He said he was a detective, and he asked if they had seen anything suspicious. They told him about the boys who had disposed of the masks, guns, and T-shirt. Gale took the guns from the dumpster and drove away in the direction that the boys had run.
Meanwhile, the police arrived at the motel to investigate the robbery. Sometime between 5:25 p.m. and 6:00 p.m.1, the officers went to the neighborhood abutting the motel and interviewed the young men and Ms. Dixon. They recovered the masks and the T-shirt from the trash receptacles, and heard the story about the man in the Isuzu who had driven off with the guns. Although several officers interviewed the boys that day, Officer Melanson was the only one who testified at trial. She estimated that she first put out an advisory on the Isuzu at 6:45 p.m.
After the police developed Gale as a suspect, the neighborhood boys identified his picture in a police photo-pak as the man who had taken the guns. Gale's fingerprints were found on a door and the service counter at the motel.
Gale testified at trial. He claimed that on the day of the robbery he had gone to the motel several times to check on the availability of a room. He was driving away shortly after five p.m. when he heard about the robbery on his police scanner. He went to an ex-girlfriend's apartment that happened to overlook the area where the robbers had run, a pedestrian path between the motel and a residential neighborhood. He left the apartment, walked over to the neighborhood, and spoke with some boys who reported seeing two people run down the path. Gale testified that he then returned to the apartment parking lot, got in his green Isuzu Rodeo, and drove away in the direction the robbers had run. As he was driving he saw that the neighborhood boys were looking in a dumpster. He stopped, saw the guns, and took them away so the boys wouldn't injure themselves. He then drove in search of the robbers.
Sometime between 5:45 p.m. and 6:05 p.m., Gale heard on his police scanner that the authorities were looking for a truck like his. Panicked, he returned to his room at another motel and told a friend what had occurred. The friend offered to return the guns to the dumpster. The guns were never recovered.
The authorities finally located Gale and brought him in for questioning. At trial he admitted that during this interview he lied when he told the police he had not been near the dumpster on the day of the robbery, and had not taken the guns. He explained that he had lied because he was afraid.
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