Reyes v. State, 3D98-2959.

• Citation: 783 So.2d 1129
• Decision Date: 28 March 2001
• Docket Number: No. 3D98-2959.,3D98-2959.
• Parties: Cesar Alexander REYES, Appellant, v. The STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

783 So.2d 1129

Cesar Alexander REYES, Appellant, v. The STATE of Florida, Appellee.

No. 3D98-2959.

District Court of Appeal of Florida, Third District.

March 28, 2001.

Rehearing Denied May 16, 2001.

Bennett H. Brummer, Public Defender and Suzanne M. Froix, Assistant Public Defender, for appellant.

Robert A. Butterworth, Attorney General and Frank J. Ingrassia, Assistant Attorney General, for appellee.

Before SCHWARTZ, C.J., and JORGENSON and FLETCHER, JJ.

SCHWARTZ, Chief Judge.

This case involves an all-too-common, all-too-tragic feature of modern American urban life. On August 19, 1995, a young woman named Evangelina Ramirez and her three-year-old nephew, Bernabe Ramirez, were visiting a park in Miami when they were caught in a hail of bullets fired at each other by members of rival youth gangs in a fight over a girl. Bernabe was killed and Evangelina seriously wounded. This appeal challenges various convictions arising from the incident imposed upon Carlos Reyes after a jury trial. The more difficult legal problems presented arise from the fact that Reyes did not fire the shots which struck the victims.¹ Rather, the state contended—and the jury found— that Reyes started the deadly melee by firing an automatic at two opposing gang members, including Daniel Espinosa, who, in returning fire with a shotgun, actually hit them.

There is little, if any, controversy about the operative facts, which are fairly stated in the appropriate light most favorable to its side in the state's brief:

On August 19, 1995, Evangelina Ramirez and her three year old nephew, Bernabe Ramirez, went out to a local store in Little Havana to buy candy. After purchasing the candy, Bernabe wanted to go into the nearby Riverside Park. Evangelina observed people playing basketball and observed a person in a white car get out of the vehicle and argue with one of the persons playing basketball. Evangelina then noticed an individual running toward the basketball court shooting a handgun with his arm stretched out straight. Shots were fired by this individual and Evangelina identified the Defendant as looking like the person with the weapon.

Evangelina was shot in the leg and right hand and lost significant mobility in her right hand. Bernabe died from a gunshot wound striking his chest. Bernabe's death resulted from a projectile that hit his chest that was consistent with being fired from a shotgun.

* * *

Hugo Paniagua testified that in August of 1995, he, together with Roberto Campos, Oreste Campos, Denilo Chavez and Daniel Espinosa were members of a gang known as the Second Street Fellows. Hugo also identified an individual known as Felix Cierra and the Defendant as members of a rival gang known as the Latin Kings. Riverside Park was the home "turf" of the Latin Kings.

On August 19, 1995, Hugo went to the beach with Denilo and Oreste. On their way home from the beach, they ran into Espinosa, who advised them of a recent argument that he had with two Latin King members, one of whom was the Defendant. Espinosa stated that he ran into the Defendant and Felix Cierra and Felix advised Espinosa that he wanted to fight Hugo.

Defendant also yelled at Espinosa that "Almighty don't love nobody!" Hugo decided to go to Riverside Park to confront the Latin Kings. Hugo decided to take a shotgun with him because Defendant had previously fired a gun at Roberto a month or two prior to August 19, 1995. Hugo, Denilo, Oreste, Roberto, and Espinosa then proceeded to Riverside Park.

Upon arriving at Riverside Park, Hugo exited the vehicle and the remaining members followed him. No one was armed at the time, but Hugo held a lighter in his hand in order to maintain a good grip. Hugo was not wearing a shirt or a bullet proof vest. Hugo punched Felix in the face. Defendant then started firing a gun at Hugo. Hugo heard five or six shots and a few seconds later, heard a loud boom from another gun. Hugo ran out of the park and shortly thereafter observed Oreste's car drive away and he got in the car and went home.

* * *

Roberto Campos testified that as the Defendant was shooting, Roberto and Espinosa retreated to their car. Roberto fell in a nearby water hole and Defendant was near the front of the car. Espinosa removed the shotgun from the car and the shotgun initially discharged, breaking the rear window of the car. Two more shots were fired from the shotgun and Defendant backed away while keeping his weapon pointed at Espinosa. Espinosa testified that he fired the shotgun because he feared for his life. Espinosa further stated that it was approximately ten seconds of time between Defendant's first shot to the initial shotgun blast.

After trial, the jury convicted Reyes of manslaughter of Bernabe Ramirez with a firearm as a lesser included offense of second degree murder (count I), aggravated battery of Evangelina Ramirez with a firearm as charged in count II, aggravated assault of Hugo Paniagua with a firearm as a lesser included offense of attempted second degree murder (count III) and attempted voluntary manslaughter of Daniel Espinosa with a firearm as a lesser included offense of attempted second degree murder (count IV).

For the reasons which follow, we uphold the validity of the charges against Reyes as they relate to Bernabe and Evangelina Ramirez, but, because of various trial errors, prominently including the admission of prejudicial evidence against him, order a new trial on all offenses.

I.

Perhaps the most significant question raised in this appeal is the underlying permissibility of holding Reyes criminally responsible, as he was in his convictions for manslaughter of the child and aggravated battery of the aunt, for a death and injuries which were physically effected by one of his antagonists.² We have concluded, however, that Reyes could properly be convicted of those offenses and thus that motions for judgments of acquittal as to them were correctly denied on the ground that each participant in a mutually-agreed-to-gun battle in a public place may be held accountable for any death or injury to an innocent person which results from that confrontation.³,⁴

This principle has been specifically recognized in Florida in March v. State, 458 So.2d 308 (Fla. 5th DCA 1984), which, like this case, arose out of a shootout between offenders⁵ which resulted in the death of an innocent bystander by a bullet from the gun of a co-participant who claimed self-defense. In rejecting a claim of non-responsibility by those who shot and missed, the court held that

[b]ecause all three parties were engaged in the same felonious activity (the shootout) their participation in the episode would have been sufficient to support a finding that they were aiders and abettors to second degree murder, so the evidence was sufficient to support the conviction of the lesser offense of manslaughter.

March, 458 So.2d at 309. The point was elaborated and its application to the broader societal issue presented by cases like this one was explained in a remarkable opinion of Maryland's highest court. In Alston v. State, 339 Md. 306, 662 A.2d 247 (1995), citing March, the court said:

The relevant frame of reference, however, is Alston's participation in the gun battle. Both the Alston group and the New York group were armed and prepared to do battle whenever and wherever their forces encountered one another. When their forces did meet at Pressman and Division Sts., they opened fire, returned fire, and continued to fire in mindless disregard of the lives of the people on the street and in the surrounding houses. Each participant, prior to the actual combat, was willing to use lethal force when the opposing groups met. Each participant manifested depraved heart malice toward noncombatants when the two groups met and sought to kill each other as they previously had determined to do. There would have been no mutual combat, and no murder of an innocent person, but for the willingness of both groups to turn an urban setting into a battleground. In this sense each participant is present, aiding and abetting each other participant, whether friend or foe, in the depraved conduct.

Alston, 339 Md.App. at 316-17, 662 A.2d at 251. A like decision is People v. Daniels, 172 Mich.App. 374, 431 N.W.2d 846 (1988), in which the following ruling of the trial judge sitting non-jury was affirmed:

`The trial court found that defendant was the driver of the blue car and that Gary Clark fired the shot that resulted in Berry's death, but that defendant and Gary Clark were equally culpable for holding their shoot-out on the residential street where it was likely that other people could be shot and killed. The trial court also found that the shoot-out was mutually agreed to by defendant and Gary Clark and that defendant, at a minimum, intended to create a very high risk of death or great bodily harm with the knowledge that death or great bodily harm was the probable result of his act. Although the court found this intent sufficient to make the killing murder in the second degree, the court entered a verdict of involuntary manslaughter because the court was not satisfied that the prosecution proved that the mitigating circumstance of provocation did not exist in light of the evidence of the beating defendant underwent and the shots fired during his first encounter with the Clarks.'

Daniels, 172 Mich.App. at 377-78,431 N.W.2d at 848. Accord, e.g., People v. Aurelio, 167 Cal.App.3d 52, 212 Cal.Rptr. 868 (1985)(irrelevant whether defendant convicted of second degree murder actually fired weapon which killed companion because he was active accomplice in commission of provocative act of driving vehicle used to invade rival gang's territory in search of rival gang member); People v. Russell, 91 N.Y.2d 280, 693 N.E.2d 193, 670 N.Y.S.2d 166 (1998)(holding defendant criminally responsible for death although fatal bullet did not come from his gun when he aided and encouraged others by agreeing to engage in gun...