Kelvin v. State, 91-2627

• Decision Date: 30 December 1992
• Docket Number: No. 91-2627,91-2627
• Citation: 610 So.2d 1359
• Parties: 18 Fla. L. Week. D190 Keith Anthony KELVIN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1359

610 So.2d 1359

18 Fla. L. Week. D190

Keith Anthony KELVIN, Appellant, v. STATE of Florida, Appellee.

No. 91-2627.

District Court of Appeal of Florida First District.

Dec. 30, 1992.

Nancy A. Daniels, Public Defender, David P. Gauldin, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Bradley R. Bischoff, Asst. Atty. Gen., Tallahassee, for appellee.

ERVIN, Judge.

Appellant, Keith Anthony Kelvin, appeals his convictions for first-degree murder and attempted first-degree murder, raising 11 issues on appeal: Whether the trial court erred in (1) admitting a statement Kelvin made to a law enforcement officer following a prior arrest; (2) denying appellant's renewed motion for change of venue; (3) rebuking defense counsel in front of the venire; (4) refusing to excuse the wife of a deputy sheriff for cause from the venire; (5) allowing one of the officers who was wounded in the gun battle involved in this case to testify that he was disabled as a result of this incident; (6) commenting on certain aspects of the evidence during trial; (7) instructing the jury on flight; (8) admitting expert testimony about a photograph of a sofa with dowels sticking into it; (9) admitting evidence of other crimes, wrongs, or acts; (10) permitting the prosecutor to make improper statements during opening statement and closing argument; and (11) failing to grant appellant's motion for judgment of acquittal on the charges of first-degree murder and attempted first-degree murder. We affirm issues 1 and 11; reverse issues 6, 7, 8, 9, and 10, and remand the case for new trial. Due to our disposition of the above issues, we consider it unnecessary to consider issues 2, 3, 4, and 5.

At approximately 9:00 p.m. on July 26, 1990, Jacksonville Sheriff's Office Patrolmen Kirk Clark and Warren Sanders went to Yellow Pine Court in an unmarked white truck on special assignment, wearing undercover clothing and bulletproof vests. The officers observed Lasean Dunnell and Tony Hamilton standing among a group of men at the nearby Cyprus Court Apartments and concluded that they were selling drugs. Believing they had been recognized by the men, the officers then decided to arrest Dunnell and Hamilton. Clark testified that he blocked the suspects' car with his truck, got out with his gun drawn, and yelled, "Mother-f-----, don't move, it's the police." Dunnell began walking slowly toward apartment number two until Clark told him to stop, whereupon Dunnell ran toward the apartment yelling "99," a street term for "police." Dunnell ran into the apartment, closing the door behind him.

In hot pursuit, Clark kicked the door open without checking whether it was locked and without identifying himself as a police officer. Clark testified that once inside, a barrage of shots was fired in his direction, and that he saw a man, later identified as appellant Keith Kelvin, squatting in a corner shooting at him. Clark returned the fire and had his legs shot out from under him. He fell and was shot two more times. He then raised himself up and, intending to shoot at the suspect, instead shot Officer Sanders, who had followed him into the apartment. Sanders said, "God damn it, Clark," and fell backward onto the floor. Clark crawled to the door where he remained until Officer J.C. Tranquille came in.

Officer Sanders died of multiple gunshot wounds with perforations of vital organs and hemorrhaging. Three of his 15 wounds were fatal or potentially fatal; four of the six bullets recovered from his body were from Officer Clark's gun, and the other two were traced to the weapon that Dunnell testified was owned by Kelvin. Clark was shot six times.

Lasean Dunnell testified on behalf of the state that he had known Kelvin for about two months before the incident. Over defense objection, Dunnell said he was selling crack cocaine that evening in order to pay Kelvin $400 he owed him for some other cocaine which he had obtained from Kelvin and that Kelvin knew Dunnell was selling drugs that night to pay the debt. The court gave a Williams ¹ rule instruction advising the jury that such evidence was offered for the limited purpose of proving motive, opportunity, etc. Dunnell continued that he saw the white truck parked across the street, and that Kelvin was sitting in front of apartment number two at the time, the apartment of Elaine Brown, with a gun in his pocket. Dunnell said that when someone jumped out of the driver's side of the truck yelling "police," Dunnell ran toward apartment number two, shouting "9," also a street term for police. Dunnell testified that he, Kelvin, and Gerald Brown ran into the apartment where Elaine had friends in the front room, and that the door was immediately kicked in by Officer Clark, whom he recognized. He said that Kelvin immediately shot Clark in the leg, that Clark fell over, and that Kelvin shot Clark a couple of more times while Clark was on the floor. He said Officer Sanders then came in the door pointing his gun at Dunnell, that Sanders did not shoot at Dunnell, and that several persons began shooting at that time, ² including Kelvin who was firing at Sanders. Dunnell then ran out the back door.

On cross-examination, Dunnell testified that when the men jumped out of the unmarked truck, he did not know that they were police, even if he had yelled "9." He said he thought they might be "jackmen" or robbers because he heard someone shout "jackmen" as the officers left the truck. In fact, he denied knowing at any time while he was running toward the apartment that the two men were police officers and not robbers, and testified that he was afraid for his life as he ran, because he knew that "jackmen" shoot. Dunnell testified he heard Clark say, "Mother-f-----, don't run," but that Clark did not say "police." He said that after he was inside the apartment, he still did not know whether the two men were police officers or robbers, and that he was even more frightened when he saw the person who had been chasing them kick the door open with a gun in hand. Dunnell said that he had been robbed twice in the same apartment complex two weeks before, first by three armed men and the second time by eight armed men. He said that Kelvin knew about the first robbery and was in a position to have observed the second. In addition, contrary to his testimony on direct, Dunnell denied having any actual knowledge whether Kelvin had in his possession a firearm while he was sitting in the chair outside the apartment.

Officer Tranquille testified that when he arrived on the scene he went to apartment number two and found both officers lying in a pool of blood. He testified that no one told him that the persons who had been shot inside the apartment were police officers, and that the only indications to that effect were the handcuffs which Sanders had on his belt and the bulletproof vests both men were wearing beneath their shirts.

Over objection, the following evidence was introduced on the issue of defendant's motive behind the shooting. Detective Varner testified that on June 30, 1990, while he was working undercover, he sold Kelvin some marijuana, and then arrested him and informed him of his constitutional rights. He described Kelvin as acting belligerently, saying to him that the "next time he wouldn't go as peacefully." Prior to trial, the court denied Kelvin's motion to suppress this testimony.

The state also theorized that Kelvin shot the two police officers to avoid being apprehended because he was on bond for the marijuana charge at the time of the shooting, he had a previous New York felony conviction, and/or he had immigration problems. Evidence was accordingly introduced showing that Kelvin had posted bond on July 1, 1990 for the earlier marijuana charge, and that bond was not released therefor until August 21, 1990; that Kelvin had been convicted of a felony in New York; and that Kelvin, who is from Guyana, had been issued an order of deportation dated March 22, 1988. The significance of all the above, according to the state, was that Kelvin would have been taken into custody and his bond cancelled if he had been arrested; therefore, Kelvin obviously had a motive to resist arrest, even with deadly force.

Elaine Brown testified on behalf of appellant, stating that on July 26, 1990, she lived at apartment number two, Cyprus Court Apartments, with her daughter and Keith Kelvin, and on that night Kelvin was sitting outside the apartment in front of the open door, while she was entertaining two guests inside the apartment. She heard a noise which sounded like children playing and went into the living room where she heard shooting; then she and her guests left by the back door. Brown and each of the guests testified that they did not hear anyone shout "police" or "9," and they did not know that the man who broke open the door was a police officer. Brown stated that she and Kelvin had witnessed an apparent robbery a couple of weeks before by people who yelled "vice," and that some men had jumped out of a car and shot at the apartment located opposite hers a couple of nights earlier.

Gerald Brown testified that he was standing by a tree the night of the incident, and he believed that robbers were inside the pickup truck. He had been robbed previously. He said that Officer Clark had stopped him a number of times; that he never had any reason to run from him; that he never saw Clark out of uniform or in an unmarked car before; and that he did not recognize Clark as the man who got out of the truck, who never identified himself as a police officer but merely instructed Brown and his acquaintances not to run. Brown and Kelvin went into apartment two, and when the door was kicked in, Brown ran out the back door. He never saw a gun on Kelvin before or during the shooting.

Derrick Martin, another member of the group outside the apartment, testified that he was with Dunnell, Brown, and others that night, and...