Johnson v. State, No. 1D18-4509

• Decision Date: 12 March 2020
• Docket Number: No. 1D18-4509
• Citation: 293 So.3d 46
• Parties: Pablo Jermaris JOHNSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

293 So.3d 46

Pablo Jermaris JOHNSON, Appellant,

v.STATE of Florida, Appellee.

No. 1D18-4509

District Court of Appeal of Florida, First District.

March 12, 2020

Rehearing Denied April 21, 2020

Andy Thomas, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Amanda D. Stokes, Assistant Attorney General, Tallahassee, for Appellee.

B.L. Thomas, J.

Appellant challenges the trial court's rulings on his motion in limine, motion for judgment of acquittal, jury instructions, and the State's remarks during closing arguments. We affirm.

Facts

Appellant was charged with one count of first-degree murder and one count of possession of a firearm by a felon. In a pretrial hearing, the defense objected to several of the State's exhibits. Defense counsel argued that the exhibits showing the path of the bullets through a neighboring apartment were irrelevant and prejudicial. The judge overruled the objections.

At trial the medical examiner testified that although she was unable to say exactly how long the victim was deceased, 5:30 a.m. was consistent with the possible time of death. The examiner described several bullet wounds

to the victim's body, including the jugular, left bicep, right hand and right forearm, as well as lacerations and abrasions to the victim's legs. The victim also suffered fractured ribs as well as lacerations of the jugular vein and the upper and lower lobes of the left lung.

The cause of death was multiple gunshot wounds

and excessive blood loss. The examiner was unable to testify as to the specific position the victim was in when she was shot. She testified that the gun was not pressed up to the victim and that it was probably a "distant wound." She further testified that there were wounds with a "downward" pathway. She was unable to determine whether the victim was shot while in a defensive position.

Two of Appellant's neighbors testified they heard noises between 5-5:30 a.m., which sounded like gunshots. The first witness testified that she heard what sounded like two taps on her window. After investigating the sound, she heard three gunshots. The second witness thought she heard a knock at her door, but when she went to check no one was there. After she returned to bed, she heard what she thought were three gunshots.

A clinical social worker testified that Appellant called her and said, "I really messed up and I think I am going to prison." He said he and his girlfriend had a big fight and she was not moving. Appellant said he wanted to turn himself in. The social worker called law enforcement.

Appellant's friend testified Appellant called him and sounded "like upset, you know what I'm saying? But he also sound like, you know, he's called me before when they had arguments, you know what I'm saying? It wasn't nothing special, nothing different."

The primary crime-scene investigator conducted a thorough analysis of Appellant's apartment. She collected fired cartridge casings, projectiles, fragments, and a nine-millimeter gun. She collected an aluminum can next to the bed. She also photographed blood stains in the bedroom, including a blood swipe on a pillow. She conducted a trajectory analysis and made a flight-path diagram showing that some of the bullets landed in a neighboring apartment. The defense renewed its motion in limine regarding the diagram, which was denied.

An officer performed an extraction on both the victim's and Appellant's cell phones. The officer retrieved outgoing text messages from the victim's phone after her estimated time of death. The text messages appeared to be from the victim to her mother about the victim going out of town for a couple days. The extraction from Appellant's phone showed numerous calls made on the day of the victim's death beginning at 5:28 a.m. None of the calls were to 911 or any law-enforcement agency.

The lead detective conducted a formal interview with Appellant which was played for the jury. Appellant stated that the victim came to his apartment because she was stressed and fighting with her family. She "flipped" and started taking it out on Appellant. Appellant asked her to leave when she started touching him. She hit him with something while he was in bed. Appellant told her to leave, again, and she grabbed the bag in which he kept his gun. He said, "It happened so fast. That's all I've got to say. It happened so fast."

The State rested its case. The defense moved for a judgment of acquittal as to the first-degree murder charge and the lesser included charge of second-degree murder. The motion was denied.

Appellant testified at trial that he and the victim were discussing taking a trip when he said something that upset the victim. She started "picking" at Appellant, so he told her to leave to avoid a fight. Contrary to the formal interview, Appellant testified that the victim left, he locked the door, and went to bed.

Appellant testified that he was awakened by something hitting him in the head. The room was dark so Appellant could not see very well, but he saw someone standing at the end of his bed. He said it all happened so fast, so he did not consider who the attacker was. The person had the bag containing his gun, so Appellant rushed to grab the gun and broke his finger when he hit it. Appellant and the person were fighting over the gun when it went off. At that moment, Appellant thought he was fighting for his life. Eventually Appellant got the gun and he let off shots. He did not know how many shots he let off or who he was shooting. He realized it was the victim when she came to him and said, "Pablo, I love you, Pablo Johnson, I love you." Appellant then dropped the gun, fell to the ground, and held the victim.

Appellant testified that he did not call 911 because he knew the victim was already dead, and he was scared. After sitting in his apartment for a long time, Appellant called his counselor. Appellant testified that he texted the victim's mother because he did not want her to show up at the scene and see her daughter.

The defense rested and renewed the motion for judgment of acquittal due to a lack of evidence of premeditation and a depraved mind. The trial court again denied the motion.

During the charge conference, defense counsel objected to the reading of the initial-aggressor jury instruction. The trial court overruled the objection. Defense counsel also sought a special jury instruction on the justifiable use of deadly force in second-degree murder and manslaughter. The trial court denied defense counsel's request, finding that the special instruction would be confusing to the jury.

During the State's closing arguments defense counsel made numerous objections including improper argument, facts not in evidence, incorrect statement of law, improper denigration of the defense, and appeal to sympathy. The trial court overruled most of the objections.

The jury found Appellant guilty of the lesser-included offense of second-degree murder. Appellant entered a plea to possession of a firearm by a felon. He was sentenced to life in prison for second-degree murder with a concurrent sentence of fifteen years for felony possession of a firearm.

Analysis

Appellant first argues that the trial court erred in denying his motion in limine to exclude photographs and diagrams of the bullet flight path into a neighboring apartment. The trial court's ruling on the admissibility of evidence will not be reversed absent an abuse of discretion, but that discretion is limited by statute and case law. McCray v. State , 919 So. 2d 647, 649 (Fla. 1st DCA 2006).

"Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence." § 90.403, Fla. Stat. (2018). Photographic evidence is admissible if it is relevant to any issue required to be proven in a case. Bauldree v. State , 284 So. 2d 196, 197 (Fla. 1973). Pictures must not be "so inflammatory as to create an undue prejudice in the minds of the jury and detract them from a fair and unimpassioned consideration of the evidence." Leach v. State , 132 So. 2d 329, 332 (Fla. 1961).

The State used the photographs and diagrams to show the trajectory of the bullets and support its argument that Appellant's actions were premeditated, and he was not acting in self-defense. The photographs and diagrams were not inflammatory and did not contain anything that would detract the jury from a fair consideration of the evidence. See Leach , 132 So. 2d at 332. Thus, the photographs and diagrams of the bullet trajectories were relevant.

Appellant next argues that the trial court erred in denying his motion for judgment of acquittal of second-degree murder because there was no evidence Appellant exhibited ill will, spite, hatred, or evil intent. A ruling on a motion for judgment of acquittal is reviewed de novo. Dunn v. State , 206 So. 3d 802, 804 (Fla. 1st DCA 2016). "There is sufficient evidence to sustain a conviction if, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt." Johnston v. State , 863 So. 2d 271, 283 (Fla. 2003).

Pursuant to section 782.04(2), Florida Statutes, second-degree murder is the "unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premediated design to effect the death of any particular individual." Although not required by statute, case law and the relevant jury instruction have defined an act as "imminently dangerous" and evincing a "depraved mind," if it is an act that: "(1) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another; and (2) is done from ill will, hatred, spite or evil intent; and (3) is of such a nature...