Santiago v. State

• Citation: 874 So.2d 617
• Decision Date: 26 March 2004
• Docket Number: No. 5D02-2659.,5D02-2659.
• Parties: Jonathan SANTIAGO, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

874 So.2d 617

Jonathan SANTIAGO, Appellant, v. STATE of Florida, Appellee.

No. 5D02-2659.

District Court of Appeal of Florida, Fifth District.

March 26, 2004.

Rehearing Denied June 15, 2004.

Francis V. Iennaco of LeBlanc & Iennaco, Orlando, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.

SAWAYA, C.J.

Jonathan Santiago appeals his conviction for the offense of third-degree murder. Santiago contends that the trial court erred in denying his motion for a new trial because the evidence was insufficient to support a conviction for that offense. We will first discuss the factual background of the instant case, explain why the evidence presented was insufficient to prove the crime of third-degree murder, and determine whether a new trial is the appropriate relief for Santiago.

Factual Background

The trial began with the State setting the background of the murder of the victim, Paul Johnson, a heroin user who used stolen property to purchase his drugs from a man named Johnny Polanco. The night of the murder, Paul's girlfriend was spending the evening with Paul. The girlfriend testified that a knock on the door prompted Paul to ask who was there, look through the peep hole, and eventually open the door and step out. After conversing with a person or persons for several minutes, Paul reentered the apartment, retrieved a cordless phone and went back out the door. Within a second or two, the girlfriend heard a gunshot and heard Paul exclaim that he had been shot.

Unfortunately, because the girlfriend did not know who shot Paul, the State presented as its key witness Polanco, who had been given immunity in exchange for his testimony. The truth according to Polanco was that on the night of the murder, he, Santiago, and two other men discussed the possibility of robbing Paul.¹ After providing them with two guns, Polanco escorted the three men to the apartment complex where Paul lived. Because he was scared, Polanco lagged behind as his minions made their way to Paul's apartment. Polanco heard a shot and ran back to the car where the others joined him.

Polanco further testified that once he and the others were reunited in the car, one of the men exclaimed that Santiago had shot Paul, whereupon Santiago told him to "shut up." The guns were discarded in a lake, and one of them was subsequently recovered where Polanco told the police to look. Polanco also testified that after he agreed to cooperate, the police wired him and sent him to confront Santiago. This attempt at obtaining evidence of Santiago's guilt was unsuccessful, however, because Santiago denied shooting Paul.

Santiago's testimony at trial differed from Polanco's. According to Santiago, he was at Polanco's apartment the night of the shooting, but he denied that he and the others planned to commit a robbery. Instead, he testified, their purpose in driving to the apartment complex where Paul lived was to buy marijuana from someone Polanco knew who lived there. That someone, however, was not Paul. While he was at the complex, Polanco decided to check on a customer who owed him money. That customer turned out to be Paul. Santiago also explained that he did not know Paul. All four men went to Paul's apartment, but Paul would not let them inside. Polanco was talking to Paul at the doorway when Santiago heard a gunshot. The men then ran to the car.

Santiago was arrested and charged with first-degree murder and attempted robbery with a firearm. The jury returned its verdict finding Santiago not guilty of those offenses and not guilty of the following lesser included offenses: second-degree murder with a firearm; second-degree murder; manslaughter with a firearm; manslaughter; and third-degree murder with a firearm. However, the jury did find Santiago guilty of third-degree felony murder, but specifically found that he did not actually possess a firearm during the commission of the crime. We will determine whether the conviction for third-degree murder should be reversed based on insufficiency of the evidence, as Santiago argues in his motion for a new trial.

The Evidence Was Insufficient To Prove Third-Degree Murder

Third-degree murder is "[t]he unlawful killing of a human being, when perpetrated without any design to effect death, by a person engaged in the perpetration of, or in the attempt to perpetrate, any felony other than any" enumerated felony in section 782.04(4)(a)-(r), Florida Statutes. § 782.04(4), Fla. Stat. (2002); Tillman v. State, 842 So.2d 922, 926 (Fla. 2d DCA 2003) ("Third-degree murder is an unlawful killing that occurs during the perpetration of, or the attempt to perpetrate, a felony other than those felonies listed in section 782.04(4), Florida Statutes (1997)."); State v. Williams, 776 So.2d 1066 (Fla. 4th DCA 2001); Sims v. State, 712 So.2d 786, 786 (Fla. 2d DCA 1998) ("Third-degree murder is the unpremeditated, unlawful killing of another by a person engaged in the commission of a felony other than certain specifically enumerated felonies."). Section 782.04 is referred to as the felony murder statute, see Williams, and third-degree murder under the statute is often referred to as third-degree felony murder. See Pope v. State, 679 So.2d 710, 715 n. 6 (Fla.1996),

cert. denied, 519 U.S. 1123, 117 S.Ct. 975, 136 L.Ed.2d 858 (1997); Baker v. State, 793 So.2d 69 (Fla. 4th DCA 2001); Williams.

The primary purpose of the felony murder statute is to protect the public from the dangers associated with the commission of felony offenses. Parker v. State, 641 So.2d 369 (Fla.1994), cert. denied, 513 U.S. 1131, 115 S.Ct. 944, 130 L.Ed.2d 888 (1995). This purpose is accomplished by imposing appropriate punishment on those who commit felony offenses that cause the death of another, thus deterring the commission of serious crimes in the future. We note, parenthetically, the suggestion that has been made that placing too much emphasis on the deterrent aspect may present an overly generous view of the ability or willingness of felons to actually engage in deliberative thought, to any meaningful degree, regarding the consequences of their actions. Williams. The punitive aspect of the statute is found in the provision that a person may be held responsible for the death of another even though he did not form the intent to kill if he was "engaged in the perpetration of ... any felony...." § 782.04(4), Fla. Stat. (2002).

The courts have interpreted this statutory provision in light of the purpose of the felony murder statute to protect society by imposing just punishment and, perhaps to some degree, deter future crime by requiring that there be a causal connection between the felony that was committed and the killing of the victim. House v. State, 831 So.2d 1230 (Fla. 2d DCA 2002); Allen v. State, 690 So.2d 1332, 1334 (Fla. 2d DCA 1997). As the court explained in Allen, "In any felony murder conviction the element of causation, i.e., that the homicide was committed in the perpetration of the felony, must be established." 690 So.2d at 1334 (citing Mahaun v. State, 377 So.2d 1158 (Fla.1979)).² "Stated another way, the State must prove that there was no break in the chain of circumstances beginning with the felony and ending with the murder." House, 831 So.2d at 1232 (citing Parker). If there is a break in the chain of events between the felony and the killing, the felony murder rule does not apply. See House; Lester v. State, 737 So.2d 1149, 1151 (Fla. 2d DCA 1999)

; Allen.

Santiago contends that the verdict rendered by the jury clearly shows that the jury rejected Polanco's testimony and accepted Santiago's testimony that the men were buying cannabis from a third party. Santiago argues that he could not be guilty of third-degree murder because the State failed to present sufficient evidence to establish a causal connection between the intent to purchase cannabis and the shooting of Paul. The State contends that Polanco's testimony that he was a cannabis customer of Paul supplied the nexus between the attempt to purchase the cannabis and the murder.

We believe that the State has taken an inaccurate view of the testimony. Polanco's original story to the police, or one of the original stories, was that he went to Paul's apartment with the other men to buy cannabis from Paul. But Polanco admitted that this was a lie after he made his deal for immunity with the police and after he became aware of the self-serving importance to tell the truth. Moreover, the jury specifically found that Santiago had not carried a firearm during the crime and also found him not guilty of the robbery charge. Santiago argues that this left the jury with his testimony, which failed to establish a causal connection between the intent to purchase cannabis from an unnamed third party and Paul's murder.

The record clearly shows that the State failed to present any evidence of an actual drug purchase or of an attempted drug purchase. At most, the State presented evidence of an intent to purchase cannabis, but there must be more. In addition to the specific intent to commit a crime, the State must also show that the defendant committed some actual overt act toward actually committing the crime that was more than mere preparation. State v. Duke, 709 So.2d 580 (Fla. 5th DCA 1998); Morehead v. State, 556 So.2d 523 (Fla. 5th DCA 1990). "The overt act must reach far enough toward accomplishing the desired result to amount to commencement of the consummation of the crime." Morehead, 556 So.2d at 525 (footnote omitted) (citing State v. Coker, 452 So.2d 1135 (Fla. 2d DCA 1984)).

In Duke, for example, the defendant met a person who he thought was a twelve-year-old girl in a chat room on the Internet when, in reality, the defendant was communicating with a law enforcement officer. The officer eventually set up a meeting with the defendant so they could get together and engage in sex. As...