Rocker v. State

• Decision Date: 14 November 2012
• Docket Number: Case No. 2D10-5060
• Parties: COREY JOSHUA ROCKER, Appellant, v. STATE OF FLORIDA, Appellee.
• Court: Florida District Court of Appeals

COREY JOSHUA ROCKER, Appellant,

v.STATE OF FLORIDA, Appellee.

Case No. 2D10-5060

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

Opinion filed November 14, 2012

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED.

Appeal from the Circuit Court for Pinellas

County; Philip J. Federico, Judge.

James Marion Moorman, Public Defender,

and William L. Sharwell, Assistant Public

Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,

Tallahassee, and Anne Sheer Weiner,

Assistant Attorney General, Tampa,

for Appellee.

WHATLEY, Judge.

Corey Joshua Rocker appeals his conviction and sentence of first-degree murder. This case involves the tragic shooting death of an eighteen-year-old which occurred during an attempted robbery by a fifteen-year-old and a sixteen-year-old. Rocker, the sixteen-year-old, was found guilty as charged of first-degree felony murderand was sentenced to a mandatory term of life in prison. We affirm his conviction, but we reverse his sentence based on the recent United States Supreme Court opinion, Miller v. Alabama, 132 S. Ct. 2455, 2460-61 (2012), which held that a sentencing scheme requiring a mandatory sentence of life in prison without the possibility of parole for juvenile homicide offenders violates the Eighth Amendment's prohibition on cruel and unusual punishment.

Motion for Judgment of Acquittal

Rocker argues on appeal that the trial court erred in denying his motion for judgment of acquittal because there was insufficient evidence that he acted as a principal in the attempted robbery of the victim, Brennon Days.¹ This court reviews the denial of a motion for judgment of acquittal using a de novo standard of review and where a judgment is supported by competent, substantial evidence, it must be affirmed. Black v. State, 95 So. 3d 884, 886 (Fla. 2d DCA 2012). "If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction." Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002).

First-degree murder includes the unlawful killing of a person when committed by someone engaged in either the perpetration of, or in the attempt to perpetrate, a robbery. § 782.04(1)(a)(2)(d), Fla. Stat. (2008). A person may be convicted as a principal even if he or she is not actually or constructively present at the commission of the crime when that person "aids, abets, counsels, hires, or otherwiseprocures such offense to be committed, and such offense is committed or is attempted to be committed." § 777.011, Fla. Stat. (2008).

In the present case, the testimony at trial showed that Rocker made arrangements to meet the victim on the night of the murder. There was testimony that the victim had sold drugs to Rocker three times in the past. At about 6:48 p.m., Rocker called an acquaintance named Ryan Haynes, told him that he wanted to purchase drugs, and asked for the victim's telephone number. Rocker then immediately called the victim at 6:55 p.m. Later that night at about 10:00 p.m., Rocker and his codefendant, Miterrio Banks, went to the home of Golden Butler. While at that home, Rocker attempted to call the victim three times between 10:18 p.m. and 10:30 p.m., and the victim returned Rocker's phone call around 10:32 p.m. Rocker again called the victim around 10:40 p.m., and the victim's last phone call to Rocker was at 10:45 p.m. While Rocker was talking on the phone with the victim, Butler asked who he was talking with and Banks told him, "shush," to be quiet.

When Rocker and Banks arrived at Butler's home, they had a gun with them and Butler testified that they passed the gun back and forth, "fondling it." Before Rocker and Banks left Butler's home, they asked Butler, a nine-time convicted felon, if he wanted to "go handle something." When Butler declined, Rocker and Banks left the house with the gun. Butler then left the house almost immediately after Rocker and Banks, walking about a car length behind them. Butler testified that he left the house to sell cocaine.

Butler walked behind Rocker and Banks toward the entrance of the neighborhood. Although Butler was about a car length behind them, he claims to havelost sight of Rocker.² Butler then saw the victim's car drive up and, despite the fact that Rocker was the person who had purchased drugs from the victim in the past, Butler testified that Banks approached the car by himself and bent down at the driver's side window. Banks then asked the victim, "Where the money at?" Butler then heard a gunshot. Butler ran back toward his house and he saw Rocker and Banks running away from the scene. Banks told Rocker, "I think he's dead." The victim died from a gunshot wound to his head.

Neighbors testified that they saw people running from the scene after the shooting. Frederick and Lisa Dessaure testified that they heard a gunshot and Mr. Dessaure called 911 at about 10:50 p.m. When Mr. Dessaure looked outside, he saw one man running past his window. Mrs. Dessaure looked out from a different window and saw two people running past her house. Neither witness could identify the people running past their house.

Henry Hall, Rocker's uncle, testified that Rocker called him at about 11:00 p.m. to pick him up at a location close to where the shooting took place. When Hall picked up Rocker, he denied knowing why police cars were in the area. Although police found trace amounts of gun residue on Rocker's hands the day after the shooting, there was testimony that such trace amounts could come from handling a gun.

In viewing the evidence at trial in the light most favorable to the State, we conclude that there was sufficient, competent evidence that Rocker assisted Banks in the attempt to commit a robbery and that Banks shot the victim during the attempted robbery.

A person may be convicted as a principal under the felony murder statute where an individual is "a willing participant in the underlying felony and the murder resulted from forces which they set in motion. . . ." Ray v. State, 755 So. 2d 604, 609 (Fla. 2000); see also Jackson v. State, 18 So. 3d 1016, 1026 (Fla. 2009) ("Whether a defendant knows of a criminal act ahead of time or physically participates in the crime, participation with another in a common criminal scheme renders the defendant guilty of all crimes committed in furtherance of that scheme.").

The focus in a felony murder charge is not on the accused's participation in the murder but in the underlying felony. Because the victim was killed during the robbery in which Hodge participated, it matters not whether Hodge was the perpetrator of the shooting or merely participated in the robbery. In either event he would be guilty of felony murder.

Hodge v. State, 970 So. 2d 923, 927 (Fla. 4th DCA 2008) (citations omitted).

In the present case, the evidence showed that Rocker aided in the commission of the attempted robbery by making numerous telephone calls to the victim to get the victim to drive to the neighborhood. Further, we do not find merit in Rocker's argument that the evidence only established that he intended to buy cocaine from the victim. L.J.S. v. State, 909 So. 2d 951, 952 (Fla. 2d DCA 2005) ("[I]n order to be a principal in a crime, one must have a conscious intent that the crime be done and must do some act or say some word which was intended to and does incite, cause, encourage, assist, or advise another person to actually commit the crime."). Rocker and Banks brought the gun with them and they were passing it back and forth between them less than an hour before the victim was shot. Further, right before they left Butler's house, they asked him if he wanted to "go handle something." If they had simply wanted to purchase cocaine that night, they could have purchased it from Butler,who testified that he left his house that night to sell cocaine.³ Additionally, although Rocker was the person who had purchased cocaine from the victim in the past, when the victim drove to the neighborhood, Rocker apparently hid. Banks did not ask the victim about drugs but instead immediately said, "Where the money at?" Finally, after the victim was shot, Rocker was seen running away from the scene with Banks. We note that evidence of a person's flight away from a crime scene is evidence of consciousness of guilt. Brown v. State, 85 So. 3d 1160, 1163 (Fla. 4th DCA 2012).

In denying Rocker's renewed motion for judgment of acquittal, the trial court summarized the evidence as follows:

So Mr. Banks' statement when he goes up to the car is evidence of what their combined plan [of robbery] was at the time. And when he says, "Where's the money at," that's susceptible—that's a contemporaneous expression of what they're planning or their intent was previously.

And you don't go up to somebody that you're going to do a dope deal with and say where's the money at. If you go up to somebody who you know is a dope dealer that has money on him and you're going to rob him, you would say where's the money at. That's why it's significant, . . . it's a statement of what their intent was leading up to it, it seems to me.

It's all the circumstances. It's calling him on the phone a couple times to get him to come over. It's having the firearm. It's talking about doing some business. It's shushing the other guy when he's on the phone so the guy who is the object of the robbery doesn't know there's going to be multiple people there. It's going up to him and then it's saying, "Where's the money at."

We conclude that based on the totality of all of the evidence, "a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt." Pagan, 830 So. 2d at 803; see also Maisler v. State, 425 So. 2d 107, 109 (Fla. 1st DCA 1982) ("[T]he test to be applied on review of a denial of a motion for judgment of acquittal is not whether, in the opinion of the trial court or the...