Kenner v. State, Case No. 5D16–1192

CourtCourt of Appeal of Florida (US)
Writing for the CourtEDWARDS, J.
Citation208 So.3d 271
Parties Desmond T. KENNER, Appellant, v. STATE of Florida, Appellee.
Decision Date16 December 2016
Docket NumberCase No. 5D16–1192

208 So.3d 271

Desmond T. KENNER, Appellant,
v.
STATE of Florida, Appellee.

Case No. 5D16–1192

District Court of Appeal of Florida, Fifth District.

Opinion filed December 16, 2016
Rehearing Denied January 20, 2017


James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant

208 So.3d 274

Attorney General, Daytona Beach, for Appellee.

EDWARDS, J.

A sentence cannot stand if it is or appears to be based in part on a defendant's decision to maintain his innocence even after being found guilty. Desmond Kenner ("Appellant") appeals a conviction of second-degree murder with a firearm following his second jury trial on the same charges. His first conviction was reversed because of an improper jury instruction. Kenner v. State , 48 So.3d 117 (Fla. 5th DCA 2010). In the present appeal, Appellant raises four issues. We affirm his conviction and specifically affirm the denial of Appellant's motion for judgment of acquittal, the admission of the victim's dying declaration that Appellant shot him, and the exclusion of copies of the victim's felony judgments from the evidence. However, for the reasons discussed below we are compelled to reverse for resentencing before a different judge.

In March 2008, Appellant and Charles Coleman had an altercation that resulted in both of them being shot. Appellant told two different people that he was going to retaliate against Coleman. Natalin Collier testified that on the night of Coleman's death, Appellant said he was "going to handle it in the streets" without getting the police involved, referring to the previous dispute and shooting involving Coleman. Another witness, Jessica Brown, similarly testified that Appellant told her that he was going to "get" Coleman. In the early morning hours of June 25, 2008, Coleman arrived at his parents' home after being shot. His mother testified that Coleman said, "He got me. He got me, Mom. He got me this time." As he lay bleeding on the floor, Coleman told his family he knew he was dying, that he loved them, and repeated that Appellant shot him. Coleman's father testified that he heard Coleman say, "Roo Roo [Appellant's nickname] shot me again." Coleman died from the gunshot wounds.

Other than the victim's dying declaration, there was no eyewitness testimony regarding the shooting. There was also no DNA evidence connecting Appellant to the shooting, and the murder weapon was never located. Appellant's recorded phone calls from jail confirmed his former girlfriend's testimony that he asked her to lie in order to provide him an alibi for the time of the shooting. The medical examiner testified that the fatal bullet could have been fired from a distance ranging from a few feet to one mile. Appellant's motions for directed verdict were denied.

Based on the evidence presented at his second trial, the jury convicted Appellant of second-degree murder with a firearm. The jury's verdict included a special finding that Appellant actually possessed and discharged a firearm resulting in death. The judge presiding over Appellant's second trial adjudicated Appellant guilty of second-degree murder and sentenced him to life in prison with a minimum mandatory term of twenty-five years. His first jury trial and conviction for second-degree murder, before a different judge, resulted in a thirty year prison sentence.

SUFFICIENCY OF EVIDENCE

Second-degree murder is defined as "[t]he 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 premeditated design to effect the death of any particular individual." § 82.04(2), Fla. Stat. (2008). An act is considered "imminently dangerous to another and evincing a depraved mind regardless of human life" when it is an act that: "(1) a person of ordinary judgment

208 So.3d 275

would know is reasonably certain to kill or do serious bodily injury to another, and (2) is done from ill will, hatred, spite or an evil intent, and (3) is of such a nature that the act itself indicates an indifference to human life." Duckett v. State , 686 So.2d 662, 663 (Fla. 2d DCA 1996). The intent required for second-degree murder may be "inferred from the circumstances." Perez v. State , 187 So.3d 1279, 1282 (Fla. 1st DCA 2016) (citing Antoine v. State , 138 So.3d 1064, 1074 (Fla. 4th DCA 2014) ).

Appellant first argues that the trial court erred in denying his motions for judgment of acquittal, asserting that there was insufficient evidence. We disagree. The victim's dying declaration identified Appellant as the shooter. The testimony of Collier and Brown, discussed above, provided adequate proof of the requisite ill will, hatred, spite, or evil intent that Appellant harbored, which led Appellant to shoot Coleman. "All facts introduced into evidence are admitted by the defendant, and the court must draw every conclusion favorable to the state. The motion [for judgment of acquittal] should not be granted unless there is no legally sufficient evidence on which to base a verdict of guilty." Jackson v. State , 419 So.2d 394, 397 (Fla. 4th DCA 1982) (citations omitted). We affirm the denial of Appellant's motion for judgment of acquittal.

MOTION FOR MISTRIAL

Appellant argues that the trial court erred in denying his motion for mistrial after a State witness, Coleman's father, repeated his son's dying declaration in a way that implied that Appellant shot the victim on a previous occasion. "A trial court's ruling on a motion for mistrial is subject to an abuse of discretion standard of review." England v. State , 940 So.2d 389, 402 (Fla. 2006) (citation omitted). "A motion for mistrial should only be granted where an error is so prejudicial as to vitiate the entire trial." Id. at 401–02 (citing Snipes v. State , 733 So.2d 1000, 1005 (Fla. 1999) ).

Appellant moved in limine to exclude the dying declaration "Roo Roo shot me again." The trial court entertained Appellant's argument that focused in large part on whether Coleman's mother changed the wording of the dying declaration from her pretrial testimony ("Roo Roo shot me again") to her trial...

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7 practice notes
  • Roland v. Sec'y, Fla. Dep't of Corr., 3:18-cv-790-TJC-JBT
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • August 19, 2021
    ...control” that “characterize[es] the prior convictions in a way favorable to his case at trial.” Id. at 222-23; see also Kenner v. State, 208 So.3d 271, 276 (Fla. 5th DCA 2016). Ms. Nunnally testified at the evidentiary hearing that she advised Petitioner that if he took the stand, the State......
  • Berben v. State, Case No. 5D17-1428
    • United States
    • Court of Appeal of Florida (US)
    • April 12, 2019
    ...an exception exists when the trial court considers constitutionally impermissible factors in imposing a sentence. See Kenner v. State, 208 So.3d 271 (Fla. 5th DCA 2016). One such constitutionally impermissible sentencing factor would be a crime with which the defendant was never charged. Se......
  • Catledge v. State, No. 1D16-2306
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2018
    ..., 179 So.3d 551, 553 (Fla. 1st DCA 2015) (citing Jackson v. State , 39 So.3d 427, 428 (Fla. 1st DCA 2010) ); see also Kenner v. State , 208 So.3d 271, 277 (Fla. 5th DCA 2016) ; Davis v. State , 149 So.3d 1158, 1159-60 (Fla. 4th DCA 2014) ; Green v. State , 84 So.3d 1169, 1171 (Fla. 3d DCA 2......
  • Smith v. State, Case No. 5D19-770
    • United States
    • Court of Appeal of Florida (US)
    • September 25, 2020
    ..."an exception exists when the trial court considers constitutionally impermissible factors in imposing a sentence." Kenner v. State , 208 So. 3d 271, 277 (Fla. 5th DCA 2016) (citing Nawaz v. State , 28 So. 3d 122, 124 (Fla. 1st DCA 2010) ); see also Shelko v. State , 268 So. 3d 1003, 1005 (......
  • Request a trial to view additional results
7 cases
  • Roland v. Sec'y, Fla. Dep't of Corr., 3:18-cv-790-TJC-JBT
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • August 19, 2021
    ...control” that “characterize[es] the prior convictions in a way favorable to his case at trial.” Id. at 222-23; see also Kenner v. State, 208 So.3d 271, 276 (Fla. 5th DCA 2016). Ms. Nunnally testified at the evidentiary hearing that she advised Petitioner that if he took the stand, the State......
  • Berben v. State, Case No. 5D17-1428
    • United States
    • Court of Appeal of Florida (US)
    • April 12, 2019
    ...an exception exists when the trial court considers constitutionally impermissible factors in imposing a sentence. See Kenner v. State, 208 So.3d 271 (Fla. 5th DCA 2016). One such constitutionally impermissible sentencing factor would be a crime with which the defendant was never charged. Se......
  • Catledge v. State, No. 1D16-2306
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2018
    ..., 179 So.3d 551, 553 (Fla. 1st DCA 2015) (citing Jackson v. State , 39 So.3d 427, 428 (Fla. 1st DCA 2010) ); see also Kenner v. State , 208 So.3d 271, 277 (Fla. 5th DCA 2016) ; Davis v. State , 149 So.3d 1158, 1159-60 (Fla. 4th DCA 2014) ; Green v. State , 84 So.3d 1169, 1171 (Fla. 3d DCA 2......
  • Smith v. State, Case No. 5D19-770
    • United States
    • Court of Appeal of Florida (US)
    • September 25, 2020
    ..."an exception exists when the trial court considers constitutionally impermissible factors in imposing a sentence." Kenner v. State , 208 So. 3d 271, 277 (Fla. 5th DCA 2016) (citing Nawaz v. State , 28 So. 3d 122, 124 (Fla. 1st DCA 2010) ); see also Shelko v. State , 268 So. 3d 1003, 1005 (......
  • Request a trial to view additional results

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