Ngai v. State, 87-2946
| Decision Date | 28 November 1989 |
| Docket Number | No. 87-2946,87-2946 |
| Citation | 556 So.2d 1130,14 Fla. L. Weekly 2764 |
| Parties | 14 Fla. L. Weekly 2764 Tom NGAI, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Don S. Cohn, Miami, for appellant.
Robert A. Butterworth, Atty. Gen., and Julie S. Thornton and Jorge Espinosa, Asst. Attys. Gen., for appellee.
Before SCHWARTZ, C.J., and BARKDULL and HUBBART, JJ.
Defendant seeks review of his convictions and sentences, as a principal for second degree [felony] murder, attempted second degree murder, three counts of robbery with a firearm; aggravated battery, and unlawful possession of a firearm while engaged in a criminal offense.
In 1986, an armed robbery was perpetrated by 3 persons [Poindexter, Eades, Hussain] wearing ski masks and carrying firearms at a party being held by the Chinese Restaurant Association in Miami. After disabling the doorman by hitting him with the butt of a gun, the robbers fired one shot which injured one of the victims and told all the partygoers to give up all their money and jewelry and to lie down on the floor. During the commission of the robbery, the doorman regained consciousness and summoned police. When the police arrived, the robbers attempted to shoot their way out. A police officer returning fire shot one of the robbers [Hussain] and he died. The remaining two robbers, the defendant's brother, and another Chinese man who got the door opened for the actual perpetrators, plus the defendant were arrested and charged with the crimes.
At trial, the state presented testimony from one of the robbers, Poindexter, to the effect that defendant, a restaurant owner and Poindexter's former employer, contacted Poindexter to help him set up a robbery of a gambling party. He requested that Poindexter recruit others to assist as well. Poindexter got Eades and Hussain to go with him to a meeting with defendant and his brother where they testified defendant presented them with a detailed plan to stage the robbery with guns and masks and told them they would all split the money, but that defendant would get all the jewelry. Poindexter and Eades testified that they went with defendant to case the location and to rent a nearby hotel room prior to the robbery. It was the plan that defendant would act as a lookout while his brother waited in the getaway car until the robbery was completed. Several of the robbery victims testified that when they saw him after the robbery in the police station, he told them to "let it lie," i.e., implying that he did not want them to give information to the police. Eades testified that the defendant offered him $20,000 to not implicate him in the scheme. On cross examination, Eades testified that he was afraid of defendant and on redirect the state elicited Eade's testimony, over defense objection, that he was afraid of defendant because of the robbery and his offer of $20,000 hush money.
In his own defense, defendant attempted to show that he was only in the vicinity of the robbery because he had taken his brother to the party at the brother's request. On the state's hearsay objection, the defendant was precluded from arguing on opening or testifying on direct that his brother had asked him to take him to the party. Defendant was not prohibited from calling his brother as a witness. Defendant essentially denied any involvement in the scheme. He was precluded from asking the police officer who shot Hussain whether he had been given his Miranda rights before he spoke to internal affairs investigators. The jury convicted defendant on the charges heretofore set forth. The court reclassified the second degree murder charge to a life felony and the attempted second degree murder charge to a first degree felony because of the use of a firearm pursuant to section 775.081, Florida Statutes (1987). Defe...
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