Parker v. State
| Decision Date | 06 June 2001 |
| Docket Number | 99-1204,4 |
| Parties | NOT FINAL UNTIL DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING. KEVIN PARKER, Appellant, v. STATE OF FLORIDA, Appellee. CASE NO. 4D99-1204 IN THE DISTRICT COURT OF APPEALS OF THE STATE OF FLORIDA FOURTH DISTRICT Opinion filed |
| Court | Florida District Court of Appeals |
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; James I. Cohn, Judge; L.T. Case No. 98-1208CF10A.
Carey Haughwout, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
Robert Rimmer and an unidentified accomplice robbed Audio Logic, a stereo equipment store.(FN1) During the robbery, they ordered two customers and two store employees to lie on the floor, binding their hands with duct tape. They took one customer's wallet and cellular phone and tried to take the other's wallet. Rimmer shot and killed the two employees and threatened one of the customers. The State charged Rimmer with two counts of first degree murder, three counts of armed robbery, four counts of armed kidnaping, one count of attempted armed robbery, and one count of aggravated assault. The State also charged defendant with the same crimes on the theory that he was a principal. The case was tried to a jury.
From the state's advantage, the facts proved at trial are these. Defendant knew Rimmer, and they had spoken to each other fewer than ten times in the year preceding the crime. Sometime in the month before the crime they spoke in the parking lot of defendant's girlfriend, Jenette. On the morning of the robbery, defendant borrowed Jenette's car to have the stereo system's wires fixed. Jenette did not remember when he returned home, but when he did he told her that he had been to a stereo store and that, after seeing "some people," he left through the back door. She did not see any boxes of stolen stereo equipment in the car after he returned.
Before the robbery occurred, a customer named Kimberly was in the store's lobby, which is connected by a back door to an installation area. Also connected to the lobby and installation area is a storage room filled with inventory. While seated in the lobby, Kimberly saw defendant drive up to the store, park and enter through the front door.(FN2) At about the same time she also saw Rimmer drive up in a Ford Probe and park near the back. Meanwhile, defendant talked to Kimberly's daughter very briefly and then left the lobby through the back door. She did not see defendant again.
Shortly after defendant left, Rimmer entered the lobby from the same back door. He told Kimberly that her boyfriend, who was in the installation area, wanted to speak with her.(FN3) When Kimberly entered the installation area she saw the other two customers and the two employees lying on the floor with their hands bound behind their backs. She sat down on the floor and watched Rimmer and another male move boxes of inventory from the storage room into Rimmer's Ford Probe. The man assisting Rimmer, she said, was another person and not defendant.(FN4) She described this person as a 5'7" stocky, black man wearing denim shorts and a baseball hat. He was holding a roll of duct tape. She testified that she did not see defendant at any time during the robbery. She had a good view of the events at hand, but there were times when she was not looking at the perpetrators because Rimmer had ordered her not to look. After Rimmer and the other male finished loading the Ford Probe with the stolen goods, Rimmer shot and killed the two store employees. He then left the store, driving the Ford Probe.(FN5)
Another customer, named Louis, testified that he was unable to identify the other male because he never saw him. As soon as Rimmer ordered him to lie on the floor face down, he complied and did not see any of the events that happened thereafter. From listening to the sounds of footsteps on the concrete, Louis was not sure how many people besides Rimmer were involved in the robbery.
Still another customer, named Joe, briefly saw another male in the installation area with Rimmer but did not see his face. He could state only that he saw a heavy set, black male besides Rimmer. He, too, was lying face down on the floor during the robbery. During a line-up in which defendant participated, Joe identified someone other than defendant as the accomplice.
Five days after the robbery, Rimmer rented a storage unit and, assisted by an unidentified male, stored the stolen merchandise therein. Three days later, police arrested Rimmer. At about that time, Rimmer called Jenette and told her to tell "the people that I'm okay." Rimmer had not asked to speak to defendant.
Twelve days after the robbery, the police entered the storage unit and dusted the boxes of stolen goods for latent prints. Prints lifted from six of the boxes belonged to defendant.(FN6) The fingerprint analyst testified that she did not know when any of the latent prints were actually placed on the boxes. None of defendant's fingerprints were found at the Audio Logic store.
During the charge conference, defendant requested a special jury instruction stating that "mere knowledge that an offense is being committed is not the same as participation with criminal intent, and mere presence at the scene is insufficient to establish participation in the offense." The trial court denied defendant's request. Instead, the court gave the standard jury instruction for the law of "principals":
"If the defendant helped another person or persons commit a crime, the defendant is a principal and must be treated as if he had done all the things the other person or persons did if:
(1) the defendant had a conscious intent the criminal act be done, and
(2) the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist or advise the other person or persons to actually commit the crime.
To be a principal, the defendant does not have to be present when the crime is committed."
See also § 777.011, Fla. Stat. (1999).(FN7) The jury convicted defendant of the crimes charged.
The tenuity of the evidence supporting the verdicts is troubling. All that we really have is the testimony of a witness placing defendant at the scene moments before or during the inception of the incident, coupled with the 12-days-later discovery of some of the stolen property with his fingerprints on it. The interval was long enough for defendant's behavior to involve merely disposing of property stolen by someone else.
Kimberly described defendant's brief appearance at the store in exculpatory terms, saying that he was not nervous or involved in any surreptitious activity. She recounted how he had engaged in conversation with her young daughter. No one suggests that defendant was on the premises when the robbery and murders took place; indeed the state's evidence fairly shows that he was well gone when the killings actually happened. The testimony of the eyewitnesses is that the actual perpetrators were two other men. None of defendant's fingerprints were found at the scene.
Even though prima facie, evidence may be so tenuous as to raise concerns for due process. See In re Winship, 397 U.S. 358 (1970) (); see also Jackson v. Virginia, 443 U.S. 307, 318 (1979) (after Winship critical inquiry regarding sufficiency of evidence to support conviction is not simply whether jury was properly instructed but also whether record evidence could reasonably support finding of guilt beyond reasonable doubt). The facts supporting the verdict in this case are just as susceptible to an inference of lack of participation in any crime as they are of guilt, thereby calling into question whether the state's case has actually challenged the presumption of innocence. When all the evidence is equally consistent with the absence of guilt, one's trust that the result is reliable is severely weakened. The convictions here teeter on the very edge of constitutional deficiency.
Considerably enhancing our doubts in the reliability of the verdict is the refusal of the trial judge to give the special instruction requested by defendant. Clearly the special instruction would have been a correct statement of the law. See Staten v. State, 519 So. 2d 622 (Fla. 1988); Collins v. State, 438 So. 2d 1036, 1038 (Fla. 2d DCA 1983). We acknowledge that the standard jury instruction derived from the principals statute also correctly states the law. See Hooper v. State, 703 So. 2d 1143, 1148-49 (Fla. 4th DCA 1997) (Farmer, J., concurring).
The state's theory of guilt was that defendant aided the robbery by acting as a look-out. But theories are not proof. They must be supported by evidence. His brief presence on the scene before or at the beginning of the crime and his later fingerprints on stolen goods do not prove that defendant's conduct was that of a look-out. Any conclusion from this evidence that he was a look-out would be antithetic to Staten because the state's case here lacks the "something more" that the Staten court stressed. 519 So. 2d at 624. In that case, for example, there was direct testimony that defendant was present on numerous occasions when the proposed robbery was planned; that he was involved in further discussion of the planned crime as the group, including defendant, drove to the scene to execute the plan; and that he waited in a car across the street while the robbery and murder took place and then drove the getaway car. These facts added sufficient evidence of participation to sustain the conviction in Staten.
There is no comparable proof in the present case. The fact that his fingerprints were found on stolen...
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