Rocker v. State
| Decision Date | 30 August 2013 |
| Docket Number | Case No. 2D10-5060 |
| Parties | COREY JOSHUA ROCKER, Appellant, v. STATE OF FLORIDA, Appellee. |
| Court | Court of Appeal of Florida (US) |
Upon consideration of the Appellant's motion for rehearing filed November 28, 2012, it is ordered that the Appellant's motion for rehearing is granted; this court's opinion dated November 14, 2012, is withdrawn; and the attached opinion is substituted therefor.
Appellant's motion for rehearing en banc is denied as moot.
I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER.
JAMES R. BIRKHOLD, CLERK
Howard L. Dimmig, II, Public Defender, and
William L. Sharwell, Assistant Public
Defender, Bartow, for Appellant.
Corey Joshua Rocker appeals his conviction and sentence for first-degree felony murder, a violation of section 782.04(1)(a)(2)(d), Florida Statutes (2008). Because the State failed to meet its burden of proving that Rocker intended for thepredicate offense of robbery to be committed and that he assisted in the commission of the attempted robbery, we conclude that the trial court erred in denying Rocker's motion for judgment of acquittal, and we reverse his conviction for felony murder and remand for discharge.1
The evidence at Rocker's trial established that on January 24, 2008, sixteen-year-old Rocker made arrangements to meet the victim, Brennon Days, to purchase drugs. At about 6:48 p.m., Rocker contacted an acquaintance, Ryan Haynes, and told him he wanted to purchase drugs. When Haynes informed Rocker that he was unable to provide the drugs, Rocker requested the victim's telephone number. According to the testimony elicited at trial, the victim sold drugs to Rocker at least three times in the past. At 6:55 p.m., Rocker called the victim.
Later that same night around 10 p.m., Rocker and his codefendant, Miterrio Banks, went to the home of another acquaintance, Golden Butler. While at Butler's home, Rocker attempted to call the victim three times between 10:18 p.m. and 10:30 p.m. The victim returned Rocker's phone calls around 10:32 p.m. Rocker then 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 on the phone with the victim, Butler asked Rocker to whom he was talking and Banks told him to "shush," to be quiet.
When Rocker and Banks arrived at Butler's home, they had a pistol with them, and Butler testified that Rocker and Banks passed the pistol back and forth,"fondling it." During their brief stay at Butler's, neither Banks nor Rocker mentioned anything about using the pistol or robbing anyone. Before Rocker and Banks left Butler's home, they asked Butler if he wanted to "go handle something." Butler testified that the question could have meant, Butler declined the invitation, and Rocker and Banks left Butler's home with the pistol. Butler left his house almost immediately after Rocker and Banks left, 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. Butler then saw the victim's car drive up, and Butler testified that Banks approached the car by himself and bent down at the driver's side window. At this point, Butler did not see Rocker anywhere nearby. Butler heard Banks ask the victim, "Where the money at?" Butler then heard a gunshot. At the sound of the gunshot, Butler became frightened and ran back toward his house. He also saw Rocker and Banks running away from the victim's car. 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. When Mr. Dessaure looked outside his window, he saw one man running past his window. Mrs. Dessaure looked out from a different window and saw two people running past her house. Mr. Dessaure called 911 at about 10:50 p.m. Neither Mr. Dessaure nor Mrs. Dessaure could identify the people running past their house.
Henry Hall, Rocker's uncle, testified that Rocker called him at about 11 p.m. and asked Hall to pick him up at a location close to where the shooting took place.When Hall picked up Rocker, he noticed police activity in the area and asked Rocker if he knew what happened. Rocker denied knowing why police cars were in the area. Shortly after Hall picked up Rocker from the neighborhood, Rocker was arrested and charged with first-degree felony murder. Although police found trace amounts of gun residue on Rocker's hands the day after the shooting, testimony was presented that such trace amounts could come from merely handling a gun.
Rocker and Banks, his codefendant, were tried jointly. Following the close of the State's case, Rocker moved for judgment of acquittal, arguing that the State failed to meet its evidentiary burden. The trial court denied the motion. Rocker renewed his motion at the close of all the evidence, and the trial court again denied it. The jury returned a verdict finding Rocker guilty of first-degree felony murder, and he was sentenced to a mandatory term of life in prison. On appeal, Rocker argues that the trial court erred in denying his motion for judgment of acquittal because the State presented insufficient evidence that he acted as a principal in the attempted robbery of the victim.
When "the evidence is insufficient to warrant a conviction," the trial court must enter a judgment of acquittal. Fla. R. Crim. P. 3.380(a). Our review of the trial court's ruling denying Rocker's motion for judgment of acquittal is de novo. Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002); Evans v. State, 26 So. 3d 85, 88 (Fla. 2d DCA 2010). " 'However, where a conviction is based wholly upon circumstantial evidence, a special standard of review applies.' " Deparvine v. State, 995 So. 2d 351, 376 (Fla. 2008) (quoting Darling v. State, 808 So. 2d 145, 155 (Fla. 2002)). " 'Where the onlyproof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.' " Id. (quoting Darling, 808 So. 2d at 155).
First-degree murder includes the unlawful killing of a person when committed by someone engaged either in the perpetration of, or in the attempt to perpetrate, a robbery. § 782.04(1)(a)(2)(d), Fla. Stat. (2008). Rocker was convicted of first-degree murder as a principal under section 777.011, Florida Statutes (2008), on the theory that he aided and abetted Banks in the attempted robbery of the victim. In order to convict Rocker as a principal, the State had to prove two elements: (1) that Rocker intended for the robbery to be committed and (2) that Rocker assisted Banks in the commission of the offense. See McBride v. State, 7 So. 3d 1146, 1148 (Fla. 2d DCA 2009) (citing Acord v. State, 841 So. 2d 587, 589 (Fla. 2d DCA 2003)). Stated differently, the State was required to prove that Rocker aided and abetted the commission of the attempted robbery and that he had the requisite specific intent to participate in the offense. See Valdez v. State, 504 So. 2d 9, 10 (Fla. 2d DCA 1986).
Under the case law, Rocker's mere presence at the scene, knowledge of the robbery attempt, and flight from the scene are insufficient to support his conviction as a principal for Banks' conduct. See McBride, 7 So. 3d at 1148 (citing A.B.G. v. State, 586 So. 2d 445, 447 (Fla. 1st DCA 1991)); Valdez, 504 So. 2d at 10. Granted, the State could show Rocker's intent by circumstantial evidence. But if the State's proof of intent rested solely upon circumstantial evidence, then the proof had to be not only consistentwith Rocker's guilt, but also inconsistent with his reasonable hypothesis of innocence. Valdez, 504 So. 2d at 10.
Evidence which furnishes nothing stronger than a suspicion, even though it would tend to justify the suspicion that the defendant committed the crime, . . . is not sufficient to sustain [a] conviction. It is the actual exclusion of the hypothesis of innocence which clothes circumstantial evidence with the force of proof sufficient to convict. Circumstantial evidence which leaves uncertain several hypotheses, any one of which may be sound and some of which may be entirely consistent with innocence, is not adequate to sustain a verdict of guilt. Even though the circumstantial evidence is sufficient to suggest a probability of guilt, it is not thereby adequate to support a conviction if it is likewise consistent with a reasonable hypothesis of innocence.
Davis v. State, 90 So. 2d 629, 631-32 (Fla. 1956).
At the trial, the general outline of the events leading to the botched robbery and the victim's death was essentially undisputed. However, the nature of the involvement of Rocker and Banks in these events was substantially different. Butler, the State's only eyewitness to the attempted robbery and to the shooting of the victim, testified that Banks walked to the victim's car, bent down to the driver's side window, and demanded money. At that point, the pistol held by Banks discharged, fatally wounding the victim. The argument in footnote 5 of the dissent concerning the jury's ability to assess the credibility of Butler's testimony ignores the jury's express finding of fact in the verdicts naming Banks—not Rocker—as the shooter. Physical evidence corroborated Butler's identification of Banks—not Rocker—as the individual who approached the...
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