Royster v. State, 93-99

• Decision Date: 29 September 1994
• Docket Number: No. 93-99,93-99
• Citation: 643 So.2d 61
• Parties: 19 Fla. L. Weekly D2105 Robert Earl ROYSTER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 61

643 So.2d 61

19 Fla. L. Weekly D2105

Robert Earl ROYSTER, Appellant, v. STATE of Florida, Appellee.

No. 93-99.

District Court of Appeal of Florida,

First District.

Sept. 29, 1994.

Spiro T. Kypreos, Pensacola, for appellant.

Robert A. Butterworth, Atty. Gen. and Bradley R. Bischoff, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Robert Earl Royster appeals his convictions on the charges of disorderly intoxication, disorderly conduct, escape and resisting arrest without violence. We reverse appellant's conviction for disorderly intoxication. With respect to the remaining three charges, we reverse and remand for a new trial.

Appellant was charged by amended information dated March 24, 1992, with escape, disorderly intoxication and resisting arrest without violence. A trial by jury was held on August 5, 1992. The jury was unable to reach a verdict. A second amended information was filed on August 10, 1992, wherein the charge of disorderly conduct was added to the original charges.

The charges against appellant stem from an incident occurring in the early morning hours of July 23, 1991. Deputy Charles Perry, Escambia County Sheriff's Department, testified that he was on patrol with Reserve Deputy Nanette Aldridge. Perry received a radio dispatch regarding an assault victim at 4406 Chantilly Way, in Pensacola. Upon arriving at the scene, Perry knocked on the door and appellant answered. The deputy asked about the complaint. Appellant was incoherent, and Perry could not understand him. Eventually, the deputy realized that the appellant was saying he had been beaten up. Appellant began using foul language. Appellant smelled of alcohol and appeared intoxicated or "high." Perry did not arrest the appellant and the deputies left the area.

Approximately one hour later Perry and Aldridge returned to the Royster residence as backup unit for Deputy Van Weeks and Lt. Fred Price of the Escambia County Sheriff's Department. Perry noted that the defendant was already handcuffed when they arrived. Reserve Deputy Aldridge testified that when they arrived at 4406 Chantilly Way the first time the defendant was already outside to meet them. Her recollection was that the defendant used foul language, stated that he hoped Perry "got his ass beat," and announced that he did not want the deputies there. The defendant then escorted the deputies to their car saying, "I'll sue you in federal court." Aldridge felt the defendant was intoxicated.

Lt. Fred Price testified that on July 23, 1991, he went to the Royster residence in response to a shooting call. When he arrived he noticed an ambulance, people in the street and yard and "a lot of big commotion." He recalled seeing the defendant "on the front porch, causing a big scene, he was hollering and carrying on." On cross-examination Price testified that an ambulance and patrol cars will draw a crowd and that he could not say whether the people he observed were being drawn by the defendant or the ambulance. He estimated that there were 10-15 people present.

Deputy Van Weeks testified that he and Lt. Price arrived at the Royster residence about the same time. Weeks also testified that he and Price knocked on the door and the defendant and his mother stepped out. Weeks asked who had been shot. The defendant, in very abusive language, informed the officer that no one had been shot, but that was the only way he could get the officers out to his house. Appellant told Van Weeks that someone had beaten him up earlier and complained that the police would not assist him in the matter. Weeks cautioned the defendant that if he did not calm down he would be arrested. The defendant then became "a little louder, cuss words came out more frequently." The defendant seemed to be intoxicated. Weeks felt that the defendant was loud enough to be heard by the neighbors, and then arrested appellant for disorderly intoxication. Weeks recalled that the defendant's mother was present when the arrest was made. Weeks testified that appellant's mother asked him to "get this nigger out of here, I can't do anything with him, something like that." Weeks escorted the defendant to his patrol car and transported him to the jail.

Officer Patricia Scherer testified that she was on duty with Weeks that morning. She stayed in the patrol car but remembered that there was "a lot of commotion in the yard" at the Royster residence. On cross-examination she was questioned as to who was present at the scene. In addition to the defendant and Weeks, she recalled seeing emergency medical technicians and Lt. Price. She could not recall seeing any neighbors coming over or anyone else there.

Weeks testified that upon their arrival at the jail, he exited the vehicle, shut his door, and told appellant to step out and to step inside into the booking area. Weeks stepped back and the defendant got out of the vehicle, stepped around the car door and "took off running ... towards the parking lot." He "ran probably, just a rough estimate, probably 15 feet ... probably five feet past the front bumper of my car." Weeks chased appellant, grabbing him "by the chain that goes between the cuffs." Weeks escorted the defendant back towards the entrance to the booking area and let him go, at which point he "either stumbled, tripped, fell or something." When Weeks picked appellant up, appellant had a small cut on his right cheek. Appellant was taken into the jail to be examined by a nurse and was then transported to the hospital for medical attention.

Patricia Scherer remained in the patrol car when Weeks got out. She testified that the defendant "ran towards the front of the car." She did not see the defendant fall down, but did see him on the ground and being assisted getting up. While she felt he was intoxicated, she also indicated that the defendant was coherent. On cross-examination she acknowledged that her deposition testimony was, "Oh, he was stumbling because he was drunk as a hoot owl." "He was so drunk, he stunk." She further stated that she did not see the defendant physically break away from Weeks. Appellant got no more than five feet in front of the car.

William Sheffer, a local television station engineer, also witnessed the events at the Royster residence. He heard a shooting call on his police scanner and went to the Royster residence. He saw Weeks at the door of the residence. Sheffer also saw a black female come out screaming at Weeks and asking Weeks not to arrest the defendant. On cross-examination, Sheffer testified that when Weeks made contact with the defendant there was no loud voice and that the defendant raised his voice after he was being escorted to the police car. Sheffer further testified that he did not see a crowd of fifteen people at the scene.

Upon denial of defendant's motion for judgment of acquittal, Albertha Royster, appellant's mother, was called as a witness. She testified that when they arrived the police asked in a loud voice "what happened here, anybody got shot here?" Her son came to the door and said he called the police. The police "grabbed him, said you going to jail tonight because you been harassing us." "They handcuffed him and they took him away." She did not hear her son use any profanity; he "didn't say a word because they took him by surprise." Mrs. Royster further testified that she did not tell the police to get her son off the property or say "get this nigger out of here" because her son was not bothering her.

Cedric McPherson was also called as a witness for the defense. He testified that earlier in the evening he had seen someone shoot at the defendant. Later, he saw some boys punching and kicking the defendant near Truman Arms.

Appellant was found guilty on each of the four counts and sentenced to 2 1/2 years for escape, 60 days (concurrent) on the charges of disorderly intoxication and disorderly conduct, and one year (concurrent) on the charge of resisting arrest without violence.

On appeal, appellant argues that: (1) the trial court erred in denying his motion for judgment of acquittal as to each offense charged; (2) the trial court erroneously instructed the jury with respect to the charge of disorderly conduct; (3) the disorderly intoxication and disorderly conduct statutes are unconstitutional as applied to appellant; (4) the trial court abused its discretion in denying appellant's motion for mistrial following officer testimony that appellant's own mother was encouraging officers to remove him from the premises; (5) the trial court erred in instructing the jury that appellant's arrest constituted the lawful execution of a legal duty; (6) the prosecutor's reference to a potential civil action by appellant...