Miller v. State

• Decision Date: 28 February 2001
• Docket Number: No. 2D97-2845.,2D97-2845.
• Citation: Miller v. State, 782 So.2d 426 (Fla. App. 2001)
• Parties: Thomas MILLER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

782 So.2d 426

Thomas MILLER, Appellant, v.STATE of Florida, Appellee.

No. 2D97-2845.

District Court of Appeal of Florida, Second District.

February 28, 2001.

Rehearing Denied March 30, 2001.

Randall O. Reder and Joe Episcopo, Tampa, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Scott A. Browne, Assistant Attorney General, Tampa, for Appellee.

DAVIS, Judge.

Thomas Miller appeals his conviction and sentence for three counts of manslaughter and one count of grand theft.Miller argues that the trial court erred in failing to grant a judgment of acquittal as to the manslaughter charges and in failing to sever the grand theft charge from the manslaughter charges.He further alleges that the prosecutor's remarks in closing argument, while not objected to, constitute fundamental error.While we are not persuaded by the first two arguments, following a thorough review of the record, we conclude that, given this extremely close case, the prosecutor's remarks in closing argument rise to the level of fundamental error.Accordingly, we reverse the manslaughter convictions and remand for a new trial.

FACTUAL BACKGROUND

On Tuesday, February 7, 1996, at approximately 11:55 p.m., Kevin Farr was driving his white Camaro south on Keyesville Road in Hillsborough County.Brian Hernandez was riding in the front passenger seat, and Randall White was sitting in the back seat.As the Camaro entered the intersection of Keyesville Road and Lithia/Pinecrest Road, the car was struck by a tractor trailer traveling west on Lithia/Pinecrest Road.The impact killed all three occupants of the Camaro.Later that night, investigators found the stop sign that controlled the traffic at that intersection lying on the ground near the site of the accident.

Immediately after the accident, investigative efforts discovered that local young people were rumored to have been involved in stealing several area traffic signs.As a result, investigators contacted the appellant, Thomas Miller, and his friends, Chris Cole and Nissa Baillie.During the investigation, all three admitted stealing numerous other traffic signs from the surrounding area.A number of these signs were recovered from a nearby river where they had been discarded after the accident.¹However, all three defendants consistently denied having anything to do with the stop sign at the site of the accident.The State filed a four-count information against each of them, charging three counts of manslaughter by culpable negligence and one count of grand theft.

Prior to trial, Miller and his co-defendants moved to sever the grand theft charge from the manslaughter charges.The trial court denied the severance.At trial, each of the defendants moved for a judgment of acquittal, arguing that the State failed to present sufficient circumstantial evidence to support the manslaughter charges.The trial court denied these motions.The jury found all three defendants guilty as charged.Miller and each of his co-defendants moved for new trials based on the insufficiency of the evidence and the inappropriate nature of the prosecutor's closing argument.The trial court denied these motions and sentenced each of them to thirty years' incarceration, suspended after fifteen years.

MOTION TO SEVER

Prior to trial, Miller moved to sever the grand theft charge from the manslaughter charges.He argued that there was no evidence linking the taking of the other signs to the downed stop sign at the site of the accident.Counsel for a co-defendant argued that evidence of the thefts should only be admitted if the State could show that it was proper Williams rule evidence.²The State countered that the grand theft count included the attempted taking of the stop sign in question.³Accordingly, the State argued that the theft of that sign and the accident were so intertwined that the charges should be tried together.The State argued further that the evidence of the thefts of the other signs provided evidence of the theft of the sign in question, so severance was inappropriate.

The amended information does not specify what signs were included in the grand theft charge, only that the total value of the signs exceeded $300.There was no bill of particulars or any other pleading that specified which signs were incorporated in the theft count.However, since none of the defendants challenged the State's representation that the subject sign was included, we cannot say that the trial court abused its discretion in denying the motion to sever, and affirm on this issue.

FAILURE TO GRANT JUDGMENT OF ACQUITTAL

Miller next argues that the trial court erred by not granting his motion for a judgment of acquittal after the State presented its case.He suggests that the circumstantial evidence presented by the State was not sufficient to exclude every reasonable hypothesis of innocence and that the evidence did not establish that the removal of the sign was the proximate cause of the accident.We disagree with both of Miller's contentions.

We first observe that the trial court should not grant a motion for judgment of acquittal"unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law."Lynch v. State,293 So.2d 44, 45(Fla.1974).Moreover, where, as here, the State's evidence is purely circumstantial, the conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.SeeState v. Law,559 So.2d 187(Fla.1989).However, because the issue of whether the evidence fails to exclude all reasonable hypotheses of innocence is a question for the jury, we will not reverse where there is competent, substantial evidence to support the jury verdict.Id. at 188.We conclude that there is competent, substantial evidence to support the verdict here.

While there was no direct evidence linking Miller and his co-defendants with the subject sign, during the investigation, Miller and each of his co-defendants admitted to sheriffs deputies that they had stolen the other signs.Although each adamantly denied any involvement with the subject sign, the State presented a scenario in which the three defendants rode around the area in Cole's pickup truck stealing various signs.Moreover, although some of the details were contested, the jury heard evidence that the co-defendants took some signs that were still attached to their posts, removed some signs from their posts at the side of the road, and on occasion, left a sign on the ground beside the road if their attempt to remove it from its post was interrupted by an approaching vehicle.In such cases, they would go back later to retrieve the sign.The evidence further showed that the signs the co-defendants admitted taking were all located within a five-mile radius of the location of the accident.The stop sign in question was found lying on the ground with the top bolt missing.Finally, a warning sign located one-tenth of a mile north of the intersection on Keyesville Road (that is, approaching the intersection) was found with one bolt missing and the other bolt partially unscrewed.The State argued that these facts, together with several statements made by the defendants that could be understood to be inculpatory, sufficiently formed a welllinked chain of circumstances from which the jury could reasonably infer that the defendants attempted to take the subject sign as part of their sign-stealing spree, but abandoned the effort, leaving it on the ground near the intersection.Thus, argued the State, Miller and his co-defendants were responsible for the victims' deaths.

Miller challenges the sufficiency of this evidence, arguing that there is no evidence to connect the timing of the taking of the other signs with the attempted taking of the subject sign.Miller and his co-defendants consistently stated that they took all the signs on one evening, a Friday, and that it was either the last Friday of January or the first Friday in February.⁴Furthermore, one of the State's witnesses said that he saw the signs that the co-defendants took at the defendants' home "a couple of days" before the accident.⁵Therefore, the signs had already been taken as of February 4 or 5.However, Miller pointed out, the testimony established that the subject sign was still up on Monday, February 6, but was down on Tuesday, February 7, the day of the accident.Miller argued that based on this evidence, the only reasonable inference that could be drawn is that the co-defendants took the other signs at least several days before the accident occurred, but the subject sign was taken down on the evening of Monday, February 6, 1996.Consequently, there was insufficient evidence to connect the stealing of the other signs to the attempted taking of the subject sign.

However, the State presented contradictory testimony on the issue of timing from Larry (Jaimie) Jarrard, a friend of Cole's.Jarrard testified that he talked with Cole and Baillie about the signs the day after the accident.When asked whether the defendants told him when they took the signs, he responded, "I believe they said the day before."This testimony, if accepted by the jury, notwithstanding the other testimony to the contrary, provided the required competent, substantial evidence to tie the circumstances of the other thefts to the subject sign.Accordingly, we conclude that, even though the sufficiency depends on Jarrard's rather equivocal testimony, the record supports the trial judge's discretionary denial of the motion for a judgment of acquittal.

We hasten to add, however, that when the trial court properly denied the motion for a judgment of acquittal, the evidence before the jury had not yet been tainted by the prosecutor's closing remarks, the effect of which poisoned the resulting verdict.Thus, in the absence of the prosecutorial taint, the evidence before the jury provided the...