State v. Powell, 92-2474

• Decision Date: 27 April 1994
• Docket Number: No. 92-2474,92-2474
• Citation: 636 So.2d 138
• Parties: 19 Fla. L. Weekly D935 STATE of Florida, Appellant, v. Charles POWELL, Appellee.
• Court: Florida District Court of Appeals

Page 138

636 So.2d 138

19 Fla. L. Weekly D935

STATE of Florida, Appellant, v. Charles POWELL, Appellee.

No. 92-2474.

District Court of Appeal of Florida,

First District.

April 27, 1994.

Robert A. Butterworth, Atty. Gen., and Wendy S. Morris, Asst. Atty. Gen., Tallahassee, for appellant.

Randall J. Etheridge, Pensacola, for appellee.

LAWRENCE, Judge.

The State of Florida appeals a trial court order granting a motion for judgment of acquittal notwithstanding the jury's verdict finding Charles Powell guilty of premeditated murder. We reverse and remand for reinstatement of the jury verdict.

Powell was charged with the premeditated, first-degree murder of Bernida Faye Montgomery (victim), which occurred on October 27, 1991. Powell is sixty-seven years old, weighs 176 pounds, and has a first-grade education. The victim was twenty-four years old, about 5'11" tall, and weighed approximately 350 pounds. The two had been intimately involved for about sixteen months prior to the shooting. The victim was also dating Leroy Cargill at the same time, and on September 10, 1991, she and Cargill were engaged. Powell was also dating other women, including Mattie Rudolph, while involved with the victim. Powell went to eat dinner at Mattie Rudolph's house on the evening of October 27, 1991, around 6:00 PM and returned home about 7:20 PM. The victim arrived some time after 7:00 PM and was fatally shot about 7:40 or 7:45 PM. Powell did not call the police until about one hour and fifteen minutes after the shooting. When police arrived, he was placed under arrest.

The victim's body was found on the floor of Powell's apartment, in the doorway between his bedroom and an adjoining room, about two feet from the foot of his bed. ¹ Powell's gun, a .38 Smith & Wesson revolver which he had owned for fifteen years, was found underneath a pillow at the head of the bed, where he testified that he had always kept it.

The State presented the testimony of Officer Stull during its case-in-chief. Stull related that he arrived at Powell's house at 8:57 PM. Powell told Stull that "he had been arguing with his girlfriend and that a gun went off and she had been shot." Powell told him his girlfriend came to his house about 7:00 PM and was in an argumentative mood over his other girlfriend. The argument became physical and she grabbed Powell's arm, breaking his wristwatch. Powell put his watch on the dresser. He said he began to get angry over the argument, and began to ignore her. He went to use the bathroom. When he came out of the bathroom, he saw her standing by the bed. With her right hand, she pulled out his gun from underneath a pillow on the bed. While she held the gun with both hands, he grabbed her hands with both of his. He pushed her down, she started falling directly back, and the gun went off. He picked up the gun, and placed it back under the pillow. He paced for ten to fifteen minutes and then walked to Mattie Rudolph's house, located a mile away, where he phoned his sister, Ms. Chambers.

Mattie Rudolph testified Powell ate dinner at her house that night and left about 7:20 PM. Powell returned about 8:00 PM, saying: "A lady done got killed at my house, got shot.... She went under the pillow and got my gun and we started tussling over the gun and the gun went off." Mattie told Powell to call his sister, which he did. Powell left, after staying a total of three minutes at Mattie's house. Powell's sister arrived at Mattie's house about thirty minutes later and the two drove to Powell's house.

Ms. Chambers testified Powell phoned her that night and told her the victim had knocked on the door, had entered but had not spoken to him, and had gone to the bed and removed the pistol from under the pillow. Powell had grabbed her, they had wrestled, and the gun fired. Chambers told Powell to call the police. Chambers left her home thirty minutes later, drove to Mattie's house, and then to Powell's house. When they arrived, Powell was sitting on the porch. He had not yet called the police, but proceeded to do so when Chambers told him again.

Clarence West, a crime scene technician, testified he found no fingerprints of any value on the gun. He testified the kitchen ceiling above the counter was marked with lead from the bullet, which came to rest on the kitchen floor. Before conducting an atomic absorption test on the victim's hands to check for gunshot residue, he visually examined them but did not detect any gunpowder. He measured the distance between Mattie Rudolph's house and Powell's house to be one mile (four minutes to drive), and the distance between Ms. Chambers' house and Mattie's house to be 8.7 miles (sixteen minutes to drive). When recalled to the stand, he testified about his efforts to reconstruct the victim's location and position at the time she was shot. Using a styrofoam head and a tripod, he concluded that the only position the victim could have been in when she was shot, given the position of her body and her weight, was standing at or near the doorway, with her head possibly tilted slightly to the right and slightly backwards.

Dr. Gary Cumberland, a pathologist with a specialization in forensic pathology, testified the bullet entered between the victim's left eye and the bridge of her nose. It exited above and behind her right ear. He observed no sign of any "defense wounds," which are wounds or abrasions sustained on other parts of the body when someone tries to deflect an attack.

Greg Scala, a forensic, firearm, and tool mark examiner with the Orlando Crime Lab, also testified for the State. He testified that when a firearm is discharged, the metals barium and antimony are dispersed into the atmosphere and are deposited onto the hands of the person firing the gun or on surfaces near discharge of the firearm. On testing the atomic absorption samples taken from the victim, he found an insufficient amount of barium and antimony on her hands to conclude either way whether she had recently fired or handled a gun. The samples taken from Powell, on the other hand, showed an amount of barium and antimony in Powell's left palm indicative of amounts found on the hands of a person who had handled a discharged firearm or who had his hand in close proximity to a firearm as it discharged.

David Williams, a crime laboratory analyst specializing in firearms identification at the Florida Department of Law Enforcement, concluded the gun's muzzle was probably between fifteen to twenty-one inches from the victim's face when it was fired. He testified he found no lead residues on the front of Powell's shirt, but found some on his left cuff.

Before resting, the State presented the testimony of Carsulania Randall, a close friend of the victim's family; she and the victim called each other "cousins." Randall testified she witnessed a threatening exchange between Powell and the victim about two weeks before the shooting. She and the victim drove to Powell's home on the evening of October 11, 1991. The victim entered the house alone, but after waiting ten minutes in the car, Randall followed. She observed Powell seated on the bed, facing the victim, who was standing. Randall said she heard Powell say to the victim: "Yeah, I seen you coming from out of your nigger's house." Then, to Ms. Randall: "Your cousin thinks she's slick, but she's not slick.... [D]id your cousin tell you that she called me a motherfucker? But I don't take too kindly to nobody calling me a motherfucker." He then reached under a pillow at the end of the bed, patted it and said: "Yeah, Old Betsey will take care of that ... because this right here, it'll handle that, because I don't take too kindly to nobody calling me a motherfucker." He then picked up the gun and waved it around, but did not point it at the victim. The victim then asked Powell whether he would really shoot her, and he stated he would. The victim laughed it off.

At the conclusion of the State's evidence, Powell moved for judgment of acquittal, stating the defense theory was that the shooting was an accident and none of the State's evidence was inconsistent with that of an accident. The trial court did not rule on the motion, but took it under advisement.

Powell then took the witness stand in his defense. He testified he was in bed when the victim knocked on his door. He let her in and he sat down on the side of the bed. From the moment she entered, she was arguing about Mattie Rudolph, saying: "You never wants to go nowhere with me, but if Mattie asks you to go somewhere with her, you go." He told her: "I'm not interested in nothing you have to say." He testified he got up, got his pants off the chair, and went into the bathroom. When he returned, she grabbed his watch, and pulled it off his arm, breaking the band. He picked it off the floor and laid it on the dresser. He then sat down on the dresser. She "stood there about five or ten minutes" talking, and he said nothing. She then "dashed up under [his] pillow and got the gun out." She did not point it at him but was "com[ing] out from under the pillow with the gun." She backed up. He grabbed her hands, drawing them back, and shoved her back. ² He grabbed with his left hand because his left hand was closer to the gun and pillow from where he was sitting on the dresser. They were "tussling" in the hallway in front of the dresser. The gun went off when he shoved her back. She fell in the door. He paced the floor for a while and then drove to Mattie's house. On returning to his house, he paced between the car and the door for about five minutes.

The defense then played an audiotape of Powell's recorded statement to Officer Jablonski the day after the shooting. Powell told Jablonski the victim knocked on his door and was "raising sand" about Mattie Rudolph. He told her he was not interested in hearing what she had to say and went into the bathroom. When he returned from the bathroom, she was still arguing. The victim told him not to ignore...