George v. State
| Decision Date | 05 July 2018 |
| Docket Number | No. 3D16–423,3D16–423 |
| Citation | 251 So.3d 262 |
| Parties | Kevon GEORGE, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Aubrey Webb, Coral Gables, for appellant.
Pamela Jo Bondi, Attorney General, and Joanne Diez and Marlon Weiss, Assistant Attorneys General, for appellee.
Before ROTHENBERG, C.J., and SUAREZ and SCALES, JJ.
The defendant appeals his various convictions and sentences following a jury trial. The defendant's claims on appeal are that the trial court: (1) abused its discretion by denying his motion for a mistrial due to the prosecutor allegedly pre-trying the case during voir dire; (2) abused its discretion by granting the State's motion in limine and ruling that the defense could not cross-examine the lead detective as to his pending criminal charges; (3) abused its discretion by allowing the State to introduce a statement made by the homicide victim just before he died; and (4) fundamentally erred by instructing the jury on first-degree premeditated murder where the evidence was allegedly legally insufficient to support a conviction for that offense. Finding no reversible error, we affirm.
The defendant was charged with and convicted of: the first-degree murder of Steven Velez ("Velez") committed with a deadly weapon and with a premeditated design and/or while engaged in the perpetration of a robbery and/or a kidnapping (Count I); the kidnapping of Jose Manuel Martinez ("Martinez") with a firearm (Count II); the attempted armed robbery of Velez (Count III); falsely impersonating an officer (Count IV); giving a false name/identification after arrest (Count V); discharging a firearm from a vehicle (Count VI); and the aggravated assault of Martinez with a deadly weapon (Count VII). The charged offenses stem from the defendant's actions before, during, and after the attempted robbery of Velez—a drug supplier.
At trial, the State called several witnesses, including Michelle Lewis ("Ms. Lewis"), who participated in the crimes with the defendant but who had pled guilty to certain offenses; Martinez, the surviving victim; a neighbor who called 911; Ms. Alvarez; Detective Reid; Detective Casas; and Detective Ochoa. Their testimonies reflect the following.
The defendant and Ms. Lewis, a New York City Police Department administrative aide, drove to Miami Beach for a vacation. During their vacation, the defendant bought $5 worth of marijuana from Martinez. When the defendant told Martinez that he wanted to purchase two ounces of marijuana and half an ounce of cocaine, Martinez told the defendant that he would have to speak to Velez, who was Martinez's supplier. Martinez contacted Velez, and Velez and the defendant met and agreed to a price of $1500 for the drugs. The sale, however, was not consummated.
The following day, although the defendant did not actually have the money to purchase the drugs, he told Martinez that he had the money and asked him to come to his hotel. When Martinez entered the defendant's and Ms. Lewis's hotel room, the defendant pulled out a gun, pointed the gun at Martinez, showed Martinez a police identification card from New York, and identified himself as a New York City police officer. While holding Martinez at gunpoint, the defendant told Martinez that if he did not cooperate, he would put Martinez in jail. Martinez told the defendant to go ahead and put him in jail. When Martinez refused to "cooperate," the defendant beat and threatened to kill Martinez, and at one point, the defendant placed a gun in Martinez's mouth and threatened to kill Martinez and Martinez's family.
After being threatened for two hours, Martinez agreed to call Velez and set up a meeting with the defendant. The defendant told Martinez to place the call on speaker phone, to speak English, and to tell Velez that the defendant had the money to purchase the drugs. Martinez called Velez, and Velez agreed to meet the defendant at Velez's home. With Ms. Lewis driving, the defendant seated in the front passenger seat, and Martinez in the backseat with the child safety locks engaged, they drove to meet with Velez.
After arriving at the designated site, Velez entered the backseat of the car with a Foot Locker bag that contained a shoebox with the drugs inside. After Velez showed the defendant the drugs, the defendant instructed Ms. Lewis to show Velez the New York City police identification, and the defendant told Velez, "[Y]ou're not going to get out of this one even if you want to get out of this one." When Velez learned that the defendant did not have the money to purchase the drugs, Velez tried to open the car door. When Velez realized that the door was locked from the inside, he stuck his hand outside of the car window and opened the door. As Velez was exiting the car, the defendant warned Velez not to get out of the car, tried to grab the drugs from Velez, and shot Velez in the chest, in the back, and on his right side—with a two second break between the second and third shots. The medical examiner testified that one of the wounds was consistent with Velez being shot while in an upright position either turning or moving away from the defendant.
After the defendant shot Velez, Ms. Lewis drove away with Martinez still in the backseat. Martinez eventually jumped out of the window of the car and ran to a nearby church, where he made the following statement to Ms. Alvarez:
Immediately after Velez was shot, a neighbor called 911. The 911 call reflects that Velez was in agony, was struggling to move, and had a lot of blood on both the back and the front of his body. Within three minutes of Velez being shot, Detective Reid arrived at the scene of the shooting and asked Velez who had shot him. In response, Velez stated: "A black man with dreads." Velez died within a few minutes of making this statement.
Following the shooting, the defendant and Ms. Lewis drove back to New York, but prior to leaving Miami Beach, the defendant threw the gun out of the car window while driving over a bridge. A few days later, the defendant and Ms. Lewis were arrested in New York, and Martinez positively identified both the defendant and Ms. Lewis in separate photographic lineups.
The jury found the defendant guilty as charged, and he was later sentenced. The defendant's appeal followed.
The defendant contends that the trial court abused its discretion by denying his motion for a mistrial based on the prosecutor allegedly pre-trying the case during voir dire. See Salazar v. State, 991 So.2d 364, 371 (Fla. 2008) (). Based on the following analysis, we find that the trial court did not abuse its discretion by denying the defendant's motion for a mistrial as a mistrial was not necessary to ensure that the defendant received a fair trial. Id. at 372 ().
The defendant focuses on three primary questions, statements, and/or topics addressed by the prosecutor during voir dire: (1) notifying the jury that law enforcement did not recover a gun, and thus, no gun would be produced at trial, and asking the prospective jurors if they could still convict without the gun being introduced; (2) informing the prospective jurors that Ms. Lewis, who participated in the crimes with the defendant, had pled guilty and would be testifying as a State witness; and (3) telling the prospective jurors that they were going to hear from the surviving victim, and that he is a drug dealer. The law is clear, the State is prohibited from questioning "prospective jurors as to the kind of verdict they would render under any given state of facts or circumstances. " See Bell v. State, 108 So.3d 639, 652 (Fla. 2013) (quoting Smith v. State, 253 So.2d 465, 470 (Fla. 1st DCA 1971) ) (emphasis added).
During voir dire, the prosecutor asked the following question: "If the State proves to you beyond a reasonable doubt that a firearm was, in fact, used but we don't have it to show to you would you still come back with a conviction ?" (emphasis added). By asking this question, the prosecutor improperly attempted to question the prospective jurors as to the verdict they would render based on certain facts relevant to the defendant's case—law enforcement's failure to recover the gun. This was improper. See Renney v. State, 543 So.2d 420, 421 (Fla. 5th DCA 1989) ().
Although the prosecutor's question was improper, we conclude that the trial court did not abuse its discretion by denying defense counsel's motion for a mistrial as a mistrial was not necessary to ensure that the defendant received a fair trial. Our conclusion is based on the fact that defense counsel immediately objected; the trial court sustained the objection; the prosecutor's attempt to obtain a commitment from the prospective jurors was unsuccessful; and, after sustaining the objection, the trial court, as requested by defense counsel, gave the prospective jurors a curative instruction. Thus, although the prosecutor's unanswered question was an improper attempt to pre-try the case, the error was harmless, and therefore, the trial court correctly denied the defendant's motion for a mistrial.
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