McGhee v. Sec'y, Fla. Dep't of Corrs.

Decision Date30 August 2021
Docket Number3:18-cv-932-TJC-MCR
CourtU.S. District Court — Middle District of Florida


I. Status

Petitioner Jaloni McGhee, an inmate of the Florida penal system, initiated this case by filing a pro se Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254. (Doc. 1, Petition). He challenges a state court (Duval County, Florida) conviction and sentence for aggravated assault with a deadly weapon. Respondents oppose the Petition (Doc. 14, Response) and Petitioner has replied (Doc. 15, Reply). The case is ripe for review.

II. Background

This case arises from Petitioner's conviction for aggravated assault with a deadly weapon in Case No. 2012-CF-1747 (Fla. 4th Cir. Ct.).[1] On March 14, 2012, the State charged Petitioner by Information with two counts: (1) possession of a firearm by a convicted felon, in violation of Florida Statutes Sections 790.23(1)(a) and 775.087(2)(a)(1) (2011); and (2) aggravated assault with a deadly weapon, “to wit: [a] firearm, ” in violation of Florida Statutes Sections 784.021(1)(a) and 775.087(2)(a)(1) (2011).[2] (See Resp. Ex. 1 at 9, Information).[3] The charges stemmed from an incident in which Petitioner pointed what looked like a semi-automatic pistol at the victim, with whom Petitioner was having an “on-going dispute.” (Id. at 6).

The case proceeded to a jury trial in June 2014. (Resp. Exs. 3, 4). The victim, Mushin al-Shaibani, testified that Petitioner used to loiter in front of Shaibani's seafood market and that the two men had a running dispute. (Resp. Ex. 3 at 29-33). Shaibani testified that on the morning of November 1, 2011, while he was picking up an employee from an apartment complex near the seafood market, Petitioner approached his parked van and pointed a “gun” at his head. (Id. at 33-39). Shaibani's windows were down. (Id. at 36). Petitioner demanded that Shaibani hand over his gun, but Shaibani responded that he did not have a gun with him. (Id. at 38). When Petitioner continued to press him, Shaibani reacted by opening the van door, shoving the door into Petitioner with all his might, and punching Petitioner in the face. (Id. at 38-39). Petitioner was holding the gun within a foot of Shaibani's head when he opened the door. (Id. at 39).

Shaibani, who owned two handguns of his own (id. at 56-57), said the “gun” resembled a 9 mm pistol (id. at 39). He described the gun as a “black, old one … [b]ecause what you call - the space where he shoot, he shoot - I see, like, it's messed up, like, too many, like, shooting, like somebody use it a lot.” (Id. at 39). The force of Shaibani's blow caused Petitioner to drop the object. (See id. at 40). Shaibani was certain it was a gun because it sounded “heavy” when it hit the ground. (Id. at 39-40). Shaibani struck Petitioner again, got back in his van, and drove away. (Id. at 40). As he sped off, Shaibani heard Petitioner exclaim that he would “f' [Shaibani] up.” (Id. at 41).

Shaibani testified about two subsequent incidents involving Petitioner and the same alleged gun. Once, Petitioner pointed the gun into Shaibani's store and aimed it at him. (Id. at 43-46). On another occasion, Petitioner displayed the gun but kept it pointed at the ground. (Id. at 46-48).

The jury ultimately found Petitioner guilty of aggravated assault with a deadly weapon, but it specially found that he did not possess a firearm while committing the offense. (Resp. Ex. 1 at 15, Verdict). The jury did not convict Petitioner of other charges relating to aggravated assault, aggravated stalking, and possession of a firearm by a convicted felon. (See Resp. Ex. 2 at 28-31).

After the jury returned the verdicts, defense counsel moved to arrest judgment on the aggravated assault charge, to reduce the conviction to simple assault (a second-degree misdemeanor), and to dismiss one of the firearm-possession charges. (Resp. Ex. 1 at 16-18). Counsel argued that by finding Petitioner guilty of aggravated assault with a deadly weapon while also finding that Petitioner did not possess a firearm, the jury rendered inconsistent verdicts under Gerald v. State, 132 So.3d 891 (Fla. 1st DCA 2014). The circuit court judge held a hearing on the motion (Resp. Ex. 1 at 37-99) and granted it “to the extent stated on the record, as required by the binding legal precedent of Gerald v. State, 132 So.3d 891 (Fla. 1st DCA Feb. 13, 2014).” (Id. at 19). The judge reduced Petitioner's conviction to simple assault and sentenced him to 60 days in county jail with credit for time served. (Id. at 23-28).

The State appealed the trial court's ruling under Florida Rule of Appellate Procedure 9.140(c)(1). (Resp. Exs. 6, 7, 8). The First District Court of Appeal reversed the trial court in a written opinion. State v. McGhee, 174 So.3d 470 (Fla. 1st DCA 2015); (Resp. Ex. 8). The First DCA ruled that Petitioner's case differed from Gerald v. State and that the jury's verdicts were not truly inconsistent. The court reasoned:

“An inconsistent verdicts claim presents a pure question of law and is reviewed de novo.” Gerald, 132 So.3d at 892 (quoting Brown v. State, 959 So.2d 218, 220 (Fla.2007)). In Gerald, as here, the jury convicted the defendant of aggravated assault with a deadly weapon and made a special finding that the defendant did not actually possess a firearm. The trial court denied Mr. Gerald's motion for new trial, but on appeal this court reversed because it found a true inconsistency between the guilty verdict and the special finding because the only weapon in the case was a firearm. [W]e are left with the jury's finding, beyond a reasonable doubt, that Appellant did not actually possess the firearm during the aggravated assault, which negates the critical element that elevates simple assault to aggravated assault. This is a true inconsistent verdict....” Id. at 894. See also Starling v. State, 152 So.3d 868 (Fla. 1st DCA 2014).
Similar to Gerald, the issue in this case is whether the jury's special finding regarding the presence of a firearm negated the element of aggravated assault requiring a deadly weapon. See § 784.021(1)(a), Fla. Stat. (2014) (defining aggravated assault as an assault [w]ith a deadly weapon without intent to kill”). Here, unlike Gerald, there was a dispute at trial regarding the nature of the deadly weapon involved. For statutory purposes, a “deadly weapon” needn't be a firearm; it is simply an object used or threatened to be used in a way likely to produce death or great bodily harm. See J.L. v. State, 60 So.3d 462, 464 (Fla. 1st DCA 2011). And in this case, defense counsel openly questioned the victim's testimony about seeing a firearm as opposed to some other object:
What you have is the word of a man says that looked like a gun [sic], and by the way, when this person is standing 20 feet away from me, I can see that it's an old gun with scratches and imperfections in the barrel. But even more incredibly, it sounded like a gun when I opened the door and it dropped, not into my van but outside.

(Emphasis added). He also questioned the physical capacity of the witness to have identified a firearm:

[The victim] told you several times that obviously these were stressful situations for him that he's alleging, that his diabetes, his high blood pressure acts up, and at times, he says he loses it. I tried to explore that with him and ask him, what do you mean by losing it? Do you mean vision problems? He denied that. Do you mean memory problems? He denied that.

The State's closing argument further acknowledged a dispute over the nature of the weapon, as to whether it was a firearm or something else:

And in this case, once again, ladies and gentlemen, you brought in your common sense, and this defendant threatened to use whatever he had in his hand. And once again, the State is alleging-the State submits to you that based on the victim's testimony, it was a real firearm. But no matter what it was, he was certainly using it in a way to threaten to make it look like a real firearm.

(Emphasis added). The case before the jury in this case was therefore different from Gerald, because of the disputed nature of the weapon involved.

A second reason Gerald doesn't control in this case is because the trial court here instructed the jury on both aggravated assault and the lesser included offense of simple assault. The jury in Gerald wasn't presented both of these options. Given the options here, the jury convicted Mr. McGhee of aggravated assault, the primary offense, but additionally found that “the Defendant did not actually possess a firearm during the commission of [the aggravated assault].” There is nothing inconsistent about the jury's verdict. Apparently, it determined that the firearm-looking weapon used by Mr. McGhee to commit the offense was not actually a firearm, a finding well within the scope of the parties' arguments about the disputed weapon.

McGhee, 174 So.3d at 471-72 (emphases in original). The First DCA remanded the case for the trial court to reinstate the jury's aggravated assault verdict and to proceed with sentencing. Id. at 472.

On remand, the trial court reinstated the aggravated assault conviction and sentenced Petitioner to a term of 10 years in prison as a habitual felony offender (HFO). (Resp. Ex. 10 at 194-95; Resp. Ex. 11; Resp. Ex. 12 (Judgment)); see also Fla. Stat. § 775.084(4)(a) (HFO statute). Petitioner moved for a new trial. (Resp. Ex. 13). He argued that the jury's verdict was “contrary to the weight of the evidence and the law” because [t]he only deadly weapon alleged to have been used during the November 1, 2011 assault was a firearm, ” the State “produced no evidence to...

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