Rayl v. State, 2D99-620.

• Decision Date: 25 August 2000
• Docket Number: No. 2D99-620.,2D99-620.
• Citation: 765 So.2d 917
• Parties: Barry Joseph RAYL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

765 So.2d 917

Barry Joseph RAYL, Appellant, v. STATE of Florida, Appellee.

No. 2D99-620.

District Court of Appeal of Florida, Second District.

August 25, 2000.

Robert Augustus Harper and Jason Michael Savitz of Robert Augustus Harper Law Firm, P.A., Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Stephen D. Ake, Assistant Attorney General, Tampa, for Appellee.

THREADGILL, Acting Chief Judge.

The appellant, Barry J. Rayl, challenges a judgment and sentence for second-degree murder with a firearm. He argues that the trial court erred in denying his motion for judgment of acquittal on that charge. We agree and, therefore, reverse and remand for the conviction to be reduced to manslaughter with a firearm. The evidence presented at jury trial revealed that the appellant and the victim, William Ingram, had known each other for approximately one year. Ingram's wife worked for the appellant. The appellant testified that he and the victim had always gotten along well. He stated, however, that the victim sometimes drank heavily, and when he did, he became belligerent.

On the day of the shooting, the victim called the appellant's residence ten to fifteen times, leaving messages for the appellant. At that time, the Ingrams were separated, and the victim wanted the appellant to fire the victim's wife. The appellant believed the victim wanted his wife to be fired so that she would take him back. Initially, the calls were non-threatening. As the day went on, however, the victim sounded more and more intoxicated and he began threatening to kill the appellant.

In the past, the appellant had heard numerous stories, many from the victim, regarding the victim's involvement in violent physical altercations. The stories ranged from domestic violence to barroom brawls and included an incident where the victim claimed to have killed a member of a biker gang. The victim had also bragged to the appellant that he had black belts in two different martial arts disciplines and that he could kill a man with a single punch.

The appellant owned a lingerie modeling salon. On the day in question, the victim began calling the salon, looking for the appellant. The salon employees called the appellant's home and reported that the victim was threatening to come to the salon. They said they were scared, and they threatened to close the salon if the appellant did not come there. The appellant was scheduled to work that day from 6:00 p.m. until midnight. He arrived at the salon at approximately 3:45 p.m.

When the appellant walked in, an employee advised that the victim was again on the telephone. The appellant took the phone. After calling the appellant a profane name, the victim told the appellant he would be there in five minutes and that he was going to kill him. The appellant hung up the telephone and called 911. Two deputies responded. The appellant gave them a description of the victim and his vehicle. The deputies told the appellant they would put extra patrols in the area.

Starting at approximately 6:00 p.m., the appellant's wife called the salon several times to tell him the victim had also been calling her at home. She relayed that the victim told her he had a shotgun and was going to "blow [her] old man's brains out."

At approximately 9:10 p.m., shortly after the last call from his wife, the appellant heard the front door of the salon "bust open," and he heard the victim's voice asking where the appellant was and saying he was going to kill him. The appellant called 911. Other witnesses in the salon testified that the victim was furious, out of control, and repeatedly stated that he was going to kill the appellant. The appellant retrieved a .38 caliber handgun from his desk drawer. The victim came into the appellant's office, according to the appellant, "mad as hell." The appellant testified that the victim came toward him, and the appellant shot the victim. One of the appellant's employees, who had been in the lobby, went to the appellant's office after hearing the gunshot. She testified that she saw the victim on his knees just inside the doorway of the office. She thought she may have heard the victim say, "why did you have to do that to me?" The appellant told her to get out of there, which she believed was for her protection. As she was leaving the salon, she heard another gunshot. A moment later, the victim ran out of the salon and collapsed in the parking lot.

The appellant again called 911. The supervisor of the sheriff's office communications center testified that the call was received one minute and one second after the appellant's previous call to 911. The tapes of all the 911 calls were played for the jury. In the call after the shooting, the operator asked the appellant if the victim was alive. The appellant responded that he was going to check on him, and the operator told him to stay on the phone. The...