Moorer v. State

• Decision Date: 23 July 2019
• Docket Number: No. 1D18-1224,1D18-1224
• Citation: 278 So.3d 181
• Parties: Amos MOORER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

278 So.3d 181

Amos MOORER, Appellant,

v.STATE of Florida, Appellee.

No. 1D18-1224

District Court of Appeal of Florida, First District.

July 23, 2019

Rehearing Denied September 5, 2019

Andy Thomas, Public Defender, and M. J. Lord, Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Benjamin L. Hoffman, Assistant Attorney General, Tallahassee, for Appellee.

Lewis, J.

Appellant, Amos Moorer, challenges his convictions for attempted second-degree murder and raises two issues pertaining to the jury instructions given at his trial. Appellant argues that the justifiable use of deadly force instruction was fundamentally erroneous because it included the "otherwise engaged in criminal activity" language, but no instruction on the alleged criminal activity. He further asserts that the trial court erred by giving the aggressor instruction over his objection. For the reasons that follow, we affirm.

BACKGROUND

Appellant was charged with two counts of attempted first-degree murder after he shot Sara Renee Wilson, his ex-girlfriend, and Jahmai Makonnan Bassett, her boyfriend at the time. At trial, Wilson testified that she and Appellant broke up in the spring of 2016. They stayed in touch over the summer and he visited her at her new Tallahassee apartment. Prior to the incident, they last saw each other on July 4th, when Wilson ended their relationship for good and Appellant said "he was going to put himself out of his misery." Between the July 4th break-up and the August 11th incident, Appellant tried to contact Wilson from random phone numbers because she had blocked his number and would plead for her to get back together with him, but she did not call him, invite him over, or share with him anything about her life.

On August 11th, before it got dark, Wilson took her dog for a walk, and the dog alerted to the bushes next to her apartment building. In the bushes, Wilson saw Appellant laying on his stomach on the ground. Upon emerging from the bushes, Appellant asked Wilson to take the dog home and talk to him. She said she would, but only "to get away from him." Wilson was scared and observed that Appellant "was like he wasn't there," "it was like a person [she has] never seen. Like the look in his eyes was different. Like [she has] never seen him like that before." Wilson did not know that Appellant was coming over, and she did not say anything to him about her "weed man" being there.

Once inside her apartment, Wilson told Bassett that her ex-boyfriend was in the bushes and then called her sister. Wilson assumed Appellant left because she did not see him or his car when she looked out the window. Bassett stepped outside to wait for the Uber he had already requested because the drivers tended to go to the wrong location. Bassett had never met Appellant, did not know his name or what he looked like, and was not upset about his presence. While Bassett was outside waiting for his ride, Wilson was standing in her doorway. At that point, Appellant pulled up in his car right in front of them. Wilson asked Appellant to leave, but he exited his car and started shooting. Appellant first shot at Bassett and then came after Wilson. Once Bassett ran off to Wilson's right, Appellant "started running towards ... [Wilson] and [she] heard [more] gunshots." Appellant was facing and looking at Wilson as the gunshots continued and he made it all the way to her doorway. When Appellant saw Wilson was shot, he "just took off running."

Wilson knows Appellant owns a .45 gun, whereas Bassett does not own a gun and did not have one with him on the day of the incident. Wilson did not see Bassett do anything with his pants or waistband, but she could not see everything clearly because of the stairwell. When asked if she heard Bassett yell, curse, or make threats, Wilson explained, "I heard him say the same thing I said, just leave, she asked you to leave"; "he said something along the lines of the same thing I said. He asked, please - - she asked you to please leave." Wilson hung up with her sister to call 911, the recording of which was admitted into evidence and reflected that she told the dispatcher, "[Appellant] just came up here and I opened the door and he just started shooting at me." Bassett was upset with Wilson after the incident and did not want anything to do with her.

Several witnesses corroborated Wilson's account of the incident. Shannon Walsh, Wilson's sister, testified that shortly before 8:00 p.m. on August 11th, she received a phone call from Wilson, who sounded "worried, scared." While they were on the phone, Walsh heard Wilson repeatedly say, "please leave, [Appellant]; we've asked you to leave." Walsh also heard Bassett talking and observed that he was not yelling. "Literally right after" Wilson asked Appellant to leave, Walsh heard gunshots and screaming. The recording of Walsh's 911 call was admitted into evidence and reflected that she reported that Appellant "showed up at [Wilson's] house in the bushes," he had been stalking Wilson for a while, Wilson politely asked him to leave and told him she did not want to talk to him and he was "freaking [her] out," "and that's when he just shot."

Michael Wilson, a resident at Wilson's apartment complex and of no relation to her, testified that he saw Appellant stand up in between two vehicles, "bolt[ ] out in front of the vehicles," and "[stick] his arm out like this and start[ ] firing" at Bassett, who was in the doorway area of the apartment and then ran to his right before falling to the ground. Appellant looked around and then said to Wilson, who had been standing in her doorway and was entering her apartment, "where do you think you're going" and followed her. Michael heard gunshots as Appellant bolted from between the vehicles, after Bassett ran, and as Appellant was going towards Wilson.

Neither the resident who assisted Bassett at the scene nor the forensic specialist who collected Bassett's belongings at the hospital saw a gun on him. Wilson and Bassett were shot multiple times in the leg and foot. Five spent casings and three projectiles were collected at the crime scene, which an expert in ballistics testified were fired from a Hi-Point .45 caliber semiautomatic pistol. Sergeant Christopher Corbitt, an expert in historical communication records analysis, testified that based on Appellant's phone records, he determined that on the day in question, Appellant entered Leon County about 6:14 p.m., was around the crime scene at 7:52 p.m., was moving away from the scene at 7:55 p.m., and was back in Jacksonville at 10:59 p.m.

Appellant testified that he had broken up with Wilson and they last spoke about ten days before the incident. On August 11th, Appellant was going to the Pensacola area for vacation and decided to stop at the leasing office of Wilson's apartment complex to see if he could obtain another lease for her because he knew her lease was about to expire and she was having issues with it. Appellant still loved Wilson, but was not intending on seeing her, so he parked and walked where she could not see him. When Appellant saw Wilson walking the dog, he squatted down in the bushes in an attempt to avoid her, though he was not trying to hide. When the dog alerted Wilson to the bushes, Appellant stood up and she "kind of bust[ed] out laughing." Appellant asked to talk to Wilson for a minute, and she said, "give me a second, ... my weed man is here." Appellant thought Wilson was referring to "Seven," with whom he did not want any contact because his understanding was that Seven was a gang member and she had his dog. Appellant had taken Wilson to Seven's house to buy marijuana, but never actually met him.

Appellant then went to his car to pull into the apartment complex because Wilson said "he was going to leave." When Appellant parked directly in front of Wilson's apartment, he saw her in the doorway and a man walking away from the apartment. While Appellant was still in his car, the man—Bassett—turned around and headed towards him. Appellant explained, "[Bassett] just had a pissed off look on his face. He just looked angry. He was on his cell phone when he was walking towards me," "[a]nd at this point I'm only, you know, making assumptions." Appellant told Bassett that he did not have a problem with him and was there to talk to Wilson. Bassett had gold teeth and tattoos, which made Appellant think he was Seven. As Bassett was "still pacing back and forth on the sidewalk," he was "fumbling [in his pocket and then waistband] with what [Appellant] believe[d] to be a firearm." Believing that Bassett was armed, Appellant started looking for his firearm, a Hi-Point .45. Appellant asked Wilson to talk to him, but she said she could not and looked at Bassett, which made Appellant think that Bassett was holding her against her will. Appellant asked Bassett if they had a problem, to which Bassett responded, "I don't know, you tell me...[F]* * * ..., if you know something, you better get somewhere before you get your wig split." Appellant understood that statement to be a threat to cause him death or severe bodily harm, and he was very scared. Appellant drew his weapon because he believed Bassett was about to shoot him.

After Appellant fired the first shot at Bassett, Bassett continued to face Appellant and started backing up, and then he "turns and runs and he falls [on his back] left of Wilson's front door." At that point, Appellant saw that Bassett's hands were empty and he stopped firing because he was not trying to kill Bassett and felt he could leave. Appellant added, "Before I couldn't -- I felt like, like he just forced me out of the car; like I didn't have any other option." Once Bassett fell to the ground, Appellant "turned around and walked back to the car." Appellant never tried to shoot Wilson and was unaware that she was injured. Appellant returned to Jacksonville without calling the police because Wilson "is involved with some stuff" and he...