Theophile v. State
| Decision Date | 23 November 2011 |
| Docket Number | No. 4D09–5328.,4D09–5328. |
| Citation | 78 So.3d 574 |
| Parties | Jarod THEOPHILE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Philip J. Massa, Regional Counsel and Randall Berman, Special Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fourth District, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
Defendant Jarod W. Theophile appeals his conviction and sentence for robbery with a firearm. We reverse and remand for discharge because the evidence was legally insufficient to convict the defendant as a principal on the robbery charge.
Dwight Carter, the fifty-three-year-old victim, testified that on May 17, 2009, just before 8:00 p.m., he was riding his bicycle on Australian Avenue in West Palm Beach. He had just left his girlfriend's apartment and was on his way to the Majestic gas station store. He rode past a bus stop, where he noticed three young men on bicycles. He paid little attention to them until he saw that they were riding in his direction and were behind him. As Carter got closer to the store, they sped up. The young men reached Carter at the same time and surrounded him—one went to his left, one went directly behind him, and one went the other way and continued riding ahead. The man who stopped behind Carter had a gun and told him to pull between two buildings and keep riding or else he would shoot. Carter stopped and jumped off his bike. He described the gun as a two-shot silver Derringer.
Carter held his hands up. One of the two men pointed the gun at him while the other man searched his pockets. The man who was searching Carter told the man with the gun, “you ought to shoot him anyway.” Carter protested “no, man, you got everything you want, just let me go.” The men took $40, threw Carter's wallet and watch on the ground, and then rode back to the sidewalk and off to a nearby bridge.
The defendant, the third bicyclist who had continued riding ahead when the two men stopped Carter, had gone around the corner nearly a block away to a small bridge. Carter said he saw the defendant on his bicycle looking back and watching while he was being robbed. The defendant just looked and did nothing to help Carter or stop the robbery. Carter said he never heard the defendant say or do anything during the robbery, but he could see him standing at the bridge looking back. After the two men robbed him, they rode to the bridge where the defendant was watching on his bicycle. The three men then rode their bicycles down the railroad tracks.
Carter picked up his things and ran to a phone to call 911. The police responded and took Carter to a park a few miles away near the railroad tracks. There, Carter identified three people as the ones who robbed him. He identified co-defendant Avery Hubbard as the person who searched him and Jaron Miller as the man with the gun. He identified the defendant as the person who rode by and watched from the bridge while he was robbed. Carter was positive that the defendant was not one of the two men who took him between the buildings and searched him at gunpoint. Carter also identified the bicycles. Only fifteen minutes elapsed between the robbery and his identification of the three suspects.
On cross-examination, Carter agreed that when the two co-defendants were searching him at gunpoint, the defendant had already bicycled away to the bridge and traveled about a block away. He conceded that, although he thought the defendant was a lookout, he never heard the defendant say or do anything. He testified as follows:
Defense counsel: Okay. Now, you referred to him as a lookout. Do you—did he do or say any hand gestures or anything that made it look like he knew exactly what was going on?
Carter: Only thing I know, the guy was coming not he bicycle. They all came at the same time, and he was there when I got robbed, and he watched me with my hands up in the air, you know. And when they left, they left—all three left all together the same time they left.
Carter said the defendant was about a block away but he was close enough to see that he was getting robbed. At one point, Carter testified that the defendant “was still riding to the bridge where, you know, he making motions where everybody get surrounded and meet one another at the same time and him keep me from going—being at a safe distance where I couldn't get away from nobody.” But Carter also admitted that the defendant “never hollered or said anything to anybody, he was just there looking in the crowd.” When asked specifically what the defendant did, Carter replied, He acknowledged that the defendant left the area where he was robbed and went up the bridge and just looked.
Officer John Rebholz testified that he was on routine patrol when the armed robbery call went out. After receiving the BOLO, he began looking for the suspects. He found three young men in dark clothing riding bikes near 21st Street (Coleman Park) and stopped them. Rebholz spoke with Hubbard. He was present when Carter identified the three co-defendants as the robbers.
Officer William Nealy responded to the area near Coleman Park. He saw that the other officers had three people detained, including the defendant. Nealy began walking from the park back to the robbery location and found six twenty-dollar bills spread out on the ground.
Officer Mickey Allen responded to the armed robbery call near Coleman Park and took custody of the defendant. When he patted down the defendant, Allen found a small caliber handgun in his front right pocket.
Crime Scene Investigator Amy Milstead testified that she photographed and collected six twenty-dollar bills that were all spread out along the railroad tracks. She also took possession of the gun at the station; it was fully loaded.
Detective Craig Bryan took three taped statements from the defendant. In the first interview, the defendant maintained he did not rob anyone. He said he first met with Miller and Hubbard when they came by his cousin's house and picked him up. They were going to the basketball court. The defendant told Detective Bryan that Miller and Hubbard broke off from him when they got near Carter, and that he kept riding. The defendant denied Detective Bryan's accusations that he was not telling the truth. When Bryan told the defendant that Carter identified him as the one with the gun, the defendant adamantly denied that. Bryan admitted this was not true. Then the officer suggested to the defendant that as a lookout, and being only eighteen years old, he would stand a good chance of being set free because the State Attorney's Office did not view the lookout as a person actually committing a robbery. The defendant persisted that he was not a lookout and that he just kept riding away from the others. Throughout the interview, the defendant maintained that he was far away from the area where Carter was robbed and that he was not involved.
In the second taped statement, the officer told the defendant that he was in more trouble because he had the gun in his pocket and one of the co-defendants said he was there. Defendant responded that he rode ahead and when he looked back he saw the victim picking something off the ground. He heard the victim say that they had robbed him of ten dollars. Defendant said that the gun was given to him later by the co-defendant, who asked him to hold it when they stopped and got candy from the Candy Lady at a house near the park.
In the third statement, the detective asked the defendant again what he did during the robbery. Defendant said, “[S]ir, I didn't do anything.” He said he could see something going on between the buildings, and when the two co-defendants came up to him on their bikes, he followed behind them. The defendant denied knowing what was going on or having any role in the robbery. Eventually, after the detective kept insisting that he was a lookout and involved in the robbery, the defendant told the detective he could consider him a lookout if that was what he wanted to call it. At trial, however, the detective conceded that the defendant did not confess to being a lookout and that he maintained his innocence throughout the three statements.
After the state rested, the defense moved for a judgment of acquittal. In denying the motion, the trial court referred to the victim's testimony that he believed the defendant was acting as a lookout because he was standing on the bridge about a block away, well within a distance to be able to see what occurred, and that he felt that all three people were involved.
The defendant took the stand and testified. He said that on the date of the incident, he was at his cousin's house and met up with Miller and Hubbard. They were going to play basketball at Coleman Park. All three of them were riding bikes. The defendant said he kept riding to the gas station, but Miller and Hubbard just turned off with no explanation. He saw Carter going toward the buildings. The defendant said he was about a car-length in front of his friends. He did not hear them say anything. He rode past Carter, looked back, and saw no one was behind him. He saw the others when he got over the bridge. Then he saw Miller and Hubbard riding towards him, and Carter picking something up. It was not until he saw Carter picking something up that he saw Carter; he did not see Carter with his hands raised. The defendant heard Carter say, “you all just going to take my ten dollars like that?” According to the defendant, the bridge where he stood was about a block away from the buildings.
After the co-defendants joined him, they rode over to the Candy Lady, who sold candy...
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