Johnson v. State, 70--897

• Decision Date: 18 June 1971
• Docket Number: No. 70--897,70--897
• Parties: Marion JOHNSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 452

249 So.2d 452

Marion JOHNSON, Appellant, v. STATE of Florida, Appellee.

No. 70--897.

District Court of Appeal of Florida, Fourth District.

June 18, 1971.

H. Mark Purdy, of Parkhurst & La-Hurd, Fort Lauderdale, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and Charles W. Musgrove, Asst. Atty. Gen., West Palm Beach, for appellee.

OWEN, Judge.

At approximately 3:00 p.m. on April 11, 1970, Harold L. Morrison was lured into an alley at the rear of a bar in Fort Lauderdale where he was attacked by three or four men who savagely beat and kicked him into unconsciousness and robbed him of his watch and wallet. As a consequence of this incident appellant, Marion Johnson and one Roy Henderson Adams were jointly informed against, tried and convicted of robbery and of aggravated assault by use of a deadly weapon, to-wit: a shoe.

The questions on this appeal involve the sufficiency of the evidence to sustain the conviction as to Marion Johnson. Upon consideration of the record, briefs and oral argument of counsel, we conclude that the justice of the cause requires that the judgment be reversed and the case remanded for a new trial on both counts.

The first point concerns the question of the sufficiency of the evidence as to identification of appellant as one of the assailants.

A female bartender testified that appellant and Adams were two of a group of six men who had been in the bar earlier drinking beer and shooting pool and who, sometime around 2:30 or 3:00 p.m. had gone out the back door of the bar into the alley; that about the same time (the exact time sequence is not clear) Morrison came in the bar and ordered a beer; that Morrison was then immediately summoned out the front door by some unidentified person; and that she did not thereafter see Morrison or the group of men although shortly afterwards she heard a commotion in the alley behind the bar, whereupon she called for the police from a nearby telephone. When the policeman arrived at the scene she accompanied him to the rear of the building but there was no sign of any person.

The victim, Mr. Morrison, testified that he had gone to the bar to meet someone who was going to show him where he could buy some tools; that he had just ordered a beer when the person he was to meet summoned him outside and to the back of the building, ostensibly to complete the purchase of the tools; and that when he neared the back of the building he noticed that his friend was lying on the ground and that he himself was confronted by a large man with a tatooed heart on his chest who asked about the money for the tools. He further testified that at about the same time another man came up on his left side and a third man approached him from the right with his hand upraised in a threatening manner; that he (Morrison) was then struck, knocked to the ground and savagely kicked into unconsciousness and his wallet and watch were forceably taken from him.

As a result of the savage beating he sustained, Morrison lost the sight of one eye and was partially paralyzed so that he attended trial in a wheelchair. The court permitted the bailiff to wheel Mr. Morrison to various parts of the courtroom in order to afford him an opportunity to view all of the persons present for the purpose of making an in-court identification of any of his assailants. Mr. Morrison readily identified the co-defendant Adams as the man with the tatooed chest who had confronted Morrison near the rear of the building and had asked whether he had brought the money to buy the tools. This identification of Adams was further confirmed when Adams was required to remove his shirt and bare his chest, displaying the tatoo to the witness and jury. However, although appellant was present in the courtroom at the time, Mr. Morrison testified (after looking around the courtroom) that he simply could not identify anyone else as being among the three or four men involved in the attack upon him.

The state called two police officers to testify. The first officer stated that approximately one month after the crime occurred Mr. Morrison was shown a group of photographs from which he selected four, including one of appellant Marion Johnson. There was no objection to this testimony. However, the photographs were not placed in evidence. The second officer testified that immediately after the crime was reported he met a 'second party' who stated that he knew who the culprits were, following which the informant took the officer to a bar and pointed out four people, including appellant and co-defendant Adams A motion to strike the officer's testimony as to the identification made by the 'second party' was denied.

Of the foregoing evidence, the only competent testimony touching on the identification of appellant Marion Johnson was the bartender's identification of him as being among the group of six men who had gone into the alley shortly before the crime occurred. However, at best this is only circumstantial evidence placing the appellant at the scene at or near the time the crime occurred. That circumstance would not be inconsistent with a theory that appellant actually had...