Martin v. State, 97-2964

• Decision Date: 17 February 1999
• Docket Number: No. 97-2964,97-2964
• Citation: 728 So.2d 775
• Parties: Dewayne MARTIN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

728 So.2d 775

Dewayne MARTIN, Appellant, v. STATE of Florida, Appellee.

No. 97-2964

District Court of Appeal of Florida, Fourth District.

February 17, 1999.

Rehearing Denied April 12, 1999.

Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Carol Cobourn Asbury, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Appellant was found guilty of second degree murder in the shooting death of Robert Portee. Appellant raises three points on appeal. Two of these were unpreserved, and, in any event, would have resulted in an affirmance had we been able to reach their merits. The sole issue for our consideration is the sufficiency of the evidence to support denial of appellant's motion for judgment of acquittal. Appellant argues that although the circumstantial evidence created a strong suspicion that he killed Robert Portee, it was not sufficient to sustain his conviction for second degree murder. We disagree and affirm appellant's conviction.

After the state rested, appellant moved for a judgment of acquittal. To overcome a defendant's motion for judgment of acquittal in a case based entirely on circumstantial evidence, the state has the burden of presenting evidence from which the jury can exclude every reasonable hypothesis except that of guilt. See Atwater v. State, 626 So.2d 1325, 1328 (Fla.1993), cert. denied, 511 U.S. 1046, 114 S.Ct. 1578, 128 L.Ed.2d 221 (1994). Generally, "[w]here the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence." State v. Law, 559 So.2d 187, 188 (Fla.1989). Whether the evidence fails to exclude all reasonable hypotheses of innocence is a question for the jury's determination, and the appellate court will not reverse where there is substantial competent evidence to support the jury verdict. Id. When a motion for judgment of acquittal in such a case has been made, the proper task of the trial judge is to review the evidence, taking it in the light most favorable to the state, in order to determine whether there is competent evidence from which the jury could infer guilt to the exclusion of all other inferences. Id. at 189.

Earlier during the Easter Sunday of the fatal shooting, appellant and the victim were involved in an altercation at a pool hall in Indiantown. Appellant's brother, Brunei, and a cousin, Herman Roberts, joined the fight. The victim ran away but later returned to the pool hall area and called out challenges to continue the fight. He was shouting in the direction of a vacant lot, where witnesses later heard shots fired. One witness, John Thompson, saw Roberts cross the street and retrieve a large bag from some bushes. This witness had seen Roberts hiding guns in the bushes about five days before the shooting. A pool hall employee saw appellant carrying what appeared to be a gun case and walking past the vacant lot just seconds before she heard three loud gunshot blasts. Another witness saw appellant lift an object approximately three feet long from the bushes and hide it underneath the right side of his shirt. He then saw appellant walk into the alleyway behind the pool hall. A few seconds later, several gun shots rang out and gun flashes were seen coming from that direction. The victim ran a short distance and then fell, mortally wounded in his chest.

One witness' testimony tended to rule out appellant's relatives as the shooters. Thompson said that when he first heard shots ring out, he looked in the direction of the shotgun blasts. He could plainly see appellant's brother, Brunei, standing at the corner of one of the houses and leaning against the wall. He saw appellant's cousin, Herman Roberts, whom he recognized by his clothing, on the ground away from the area of the gunfire. However, he did not see the appellant anywhere in open view at the time of the shooting. Other witnesses also testified that appellant was not visible when the shots were fired.

Next to an abandoned building near the shooting site, police investigators found two twelve-gauge .00 buckshot casings. They also recovered additional ammunition inside the building and a white plaid jacket on the ground near the abandoned building. The jacket had three live 12 gauge shotgun shells in its pocket. One of the police...