Sapp v. State

• Decision Date: 19 October 2005
• Docket Number: No. 4D03-3345.,4D03-3345.
• Citation: 913 So.2d 1220
• Parties: Robert SAPP, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

913 So.2d 1220

Robert SAPP, Appellant, v. STATE of Florida, Appellee.

No. 4D03-3345.

District Court of Appeal of Florida, Fourth District.

October 19, 2005.

Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

Appellant, Robert Sapp, was tried by jury and convicted of manslaughter for the shooting death of Steven Smith. He appeals from the judgment of conviction and sentence, contending that the trial court erred in denying his motions for judgment of acquittal and a new trial. The state urges us to affirm, arguing that appellant's actions set the stage for the tragedy which occurred and satisfied the standard for manslaughter by culpable negligence.

On the night of the shooting, appellant, Steve Smith, Steve Reddington, and three other friends were socializing at Reddington's apartment. Smith had been staying in the apartment, sleeping on the couch. The group got together at the apartment around 8:00 p.m. Everyone, including appellant, was drinking alcohol and smoking marijuana. Appellant also took two Xanax pills and snorted cocaine. This was his first time trying cocaine.

In his recorded statement to the police, appellant said that he was feeling the effects of the cocaine, which had put him on edge, making his body tingle and feel as if he were on fire. He admitted that he was "very, very messed up." Because he was feeling "antsy," appellant retrieved a gun that had been hidden in the tiles of the kitchen ceiling. He put it in his jacket pocket.

Everyone was sitting around a small table in the living room of the one-bedroom apartment. They were talking about "doing a lick," that is, robbing someone, because everybody was broke. Appellant removed the gun from his jacket pocket, took the ammunition clip out of it, and placed the gun on the table. Reddington did not want the gun around and kept telling appellant to put it away. Instead, appellant started ejecting bullets from the gun by pulling the slide back and placing the bullets back in the clip. He repeated this about four times. Appellant admitted on videotape that he was waving the gun around, showing off, and talking "trash" while the gun was loaded with hollow point bullets.

For the last time, appellant put the bullets back in the clip and removed the clip from the gun. He sat the clip on the table. When appellant pulled back the slide to make sure there were no bullets remaining in the chamber and released the slide, the gun discharged. A bullet struck Smith, who was seated directly across the table from appellant. The bullet struck Smith in the chest and severed his aorta.

Reddington and appellant carried Smith to a car, and appellant and his girlfriend left to take Smith to the hospital. On the way, they approached a road patrol deputy for help. When the deputy looked at Smith in the passenger seat, he felt that he was already dead. The deputy called for paramedics. While waiting, he and a back-up officer removed Smith from the car and tried to revive him with oxygen and a defibrillator. When the paramedics arrived, they confirmed that Smith was dead.

Appellant told the deputy at the scene that they were shot at as they were heading to their car in Casa Del Monte. He repeated this story later to a homicide detective, adding that he thought the shooting was gang-related. Later that night appellant told yet another version of the incident. He said that the victim had disappeared prior to the shooting, possibly walked down to the Quick Stop, and gotten shot while coming back. The next day, appellant gave the detective a third version of the incident. He said that the victim had walked over to use a pay phone while appellant and his girlfriend waited inside their car in the parking lot. They heard screaming and shortly thereafter some bystanders brought the victim's body to their car. They put the victim in the car and headed for the hospital.

About a week later, appellant spoke again to the detective. This time he told her that the shooting actually occurred in the apartment while he and his friends were seated around a table. He admitted he had consumed a combination of alcohol, cocaine, marijuana, and Xanax. He helped the police retrieve the gun, which he had sold after the shooting. Appellant was not arrested until after the detective received the results of the gun testing.

The state's firearms expert, Jay Mullins, testified that the Walther PPK-3 is a very well-made gun from a very reputable factory that makes good quality firearms. He test-fired the gun twice and determined that it functioned as it was designed. He saw nothing to indicate that it was defective or improperly maintained. He testified that the gun was not capable of being fired just by moving the slide back and forth. In his opinion, the gun would not fire without the trigger being pulled. Mullins conceded on cross-examination that he did not pull the slide of the gun back and forth with live rounds in it to see if the gun would fire, because he did not know for certain whether the gun would go off accidentally and he considered this too dangerous. He described the gun as not being magazine-safe, which means that the gun would fire with no magazine in place if the trigger were pulled with a bullet in the chamber.

Reddington was the only eyewitness to testify. He corroborated appellant's account that the gun went off when appellant was attempting to clear the chamber. At that point, appellant was no longer toying with the firearm. Reddington said he did not see appellant touch the trigger.

Appellant testified in his own behalf. He acknowledged that he initially lied to the police and explained that he was scared. He admitted, as he did on his videotaped statement, to ingesting drugs and alcohol and to feeling their effect. He acknowledged saying on videotape that he was showing off with the pistol and using the slide to make the bullets jump out. He admitted that his friend kept asking him to put the gun away but that he did not heed his request. Appellant testified that he was unfamiliar with the gun and did not know how it operated. He had never fired the gun before and had no idea the gun would fire without the magazine. When the gun fired, he was pulling the slide back to make sure there were no more bullets in it before handing it over to another person seated at the table. He denied ever putting his hand on the trigger. He theorized that the bullet must have curved to strike Smith because he did not have the gun pointed at him.

The jury returned a verdict of guilty on the charge of manslaughter with a firearm. The trial court denied appellant's renewed motions for judgment of acquittal and denied his motion for a new trial. Appellant was sentenced to serve twenty years in prison, followed by ten years on probation.¹

Appellant argues on appeal that the court erred in denying his motion for judgment of acquittal because the evidence was not sufficient to support his conviction of manslaughter by culpable negligence.

A motion for judgment of acquittal challenges the legal sufficiency of the evidence. See Boyce v. State, 638 So.2d 98 (Fla. 4th DCA 1994). Denial of a motion for judgment of acquittal is reviewed by the de novo standard. Jones v. State, 790 So.2d 1194, 1196 (Fla. 1st DCA 2001). If there is competent substantial evidence to support the jury's verdict, the trial court's denial of the motion will not be disturbed on appeal. Rogers v. State, 783 So.2d 980, 988 (Fla.2001). In reviewing the trial court's denial of the motion for judgment of acquittal, the appellate court must follow the well settled principle that a defendant, in moving for a judgment of acquittal, admits all facts adduced in evidence, and the court draws every conclusion favorable to the state which is fairly and reasonably inferable from that evidence. See Spinkellink v. State, 313 So.2d 666, 670 (Fla.1975); Lynch v. State, 293 So.2d 44, 45 (Fla.1974); McConnehead v. State, 515 So.2d 1046, 1048 (Fla. 4th DCA 1987).

Because conflicts in the evidence and the credibility of the witnesses have to be resolved by the jury, the granting of a motion for judgment of acquittal cannot be based on evidentiary conflict or witness credibility. See Hitchcock v. State, 413 So.2d 741, 745 (Fla.1982). Any conflicts in the evidence are properly resolved by the jury. See Jent v. State, 408 So.2d 1024 (Fla.1982). A motion for judgment of acquittal should not be granted unless the evidence is such that no view which the jury may lawfully take favorable to the state can be sustained under the law. See Jones v. State, 790 So.2d 1194, 1197 (Fla. 1st DCA 2001) (quoting Lynch, 293 So.2d at 45).

Based on our review of the record, and applying the above principles of law governing motions for judgment of acquittal, we feel compelled to affirm the judgment of conviction.

Manslaughter is defined by statute as:

The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification....

§ 782.07(1), Fla. Stat. (2003).

Culpable negligence has been defined as:

[C]onduct of a gross and flagrant character, evincing reckless disregard of human life, or of safety of persons exposed to its dangerous effects, or the entire want of care which would raise presumption of conscious indifference to consequences or which shows wantonness or recklessness or grossly careless disregard of safety and welfare of public, or that reckless indifference to rights of others, which is equivalent to an intentional violation of them.

Getsie v. State, 193 So.2d 679 (Fla. 4th DCA 1967) (quoting Miller v. State, 75 So.2d 312 (Fla.1954)).

Appellant argues his conviction for manslaughter should be reversed because the shooting was the result of an accident. He relies upon cases...