Turner v. State

• Decision Date: 24 February 2010
• Docket Number: No. 4D08-2678.,4D08-2678.
• Citation: Turner v. State, 29 So. 3d 361 (Fla. App. 2010)
• Parties: Jimmy TURNER a/k/a Tommie Wilson, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

29 So.3d 361

Jimmy TURNER a/k/a Tommie Wilson, Appellant, v.STATE of Florida, Appellee.

No. 4D08-2678.

District Court of Appeal of Florida, Fourth District.

February 24, 2010.

Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

Appellant, Jimmy Turner, was convicted of fleeing and eluding a law enforcement officer, giving a false name to an officer, and driving while license suspended.He contends that the trial court erred in failing to grant his motion for judgment of acquittal based upon his defense of duress to the fleeing and eluding charge.Because the evidence supporting his defense, namely his own testimony, was rebutted, we affirm.He also moved for judgment of acquittal on the charge of driving while license suspended.Because the state failed to prove the element of knowledge of the suspension, we reverse that conviction.

While on road patrol one evening, a law enforcement officer observed a vehicle operating without headlights.The officer activated his lights and siren and attempted to conduct a traffic stop.The vehicle continued eight blocks without slowing down, turned onto another street, continued one more block, and then turned again into a shopping plaza before coming to a stop.The officer testified that the vehicle did not stop at all when it got to the street where it turned.Two passengers, one of whom was carrying a handgun, exited the vehicle and fled.The officer approached Turner, the driver.At the time Turner was out on bond on another felony.Turner gave the officer a false name, and he was booked into jail under that name.He also told the officer that he did not know his passengers.

At trial, Turner presented a duress defense, claiming that his cousin and a friend were the passengers with him in the vehicle.When the officer turned on his lights and sirens, his cousin "flipped out" and told him to go on.He drove about eight blocks with his cousin screaming at him not to stop.At a corner, Turner stopped but his cousin demanded that he continue to drive.His cousin told him that he had bullet proof vests and masks in the vehicle.The cousin was also wanted on an outstanding warrant.Turner, however, was worried that he was in his girlfriend's car, and the police could take the car if he continued to "go away."Then his cousin "pulled it out."Turner then turned the corner.He eventually stopped in a shopping plaza where his cousin and the passenger fled.

On direct, Turner also told his attorney that he never saw the gun.Then he testified that his cousin's friend was holding it and running away.Yet on cross-examination he said he actually saw the gun.

Turner admitted that he told the officer that he did not know the names of the people in the car, and he never told the officer that he had been threatened by them.He explained this by saying they were "blood."He also testified that he did not give the officer his real name, because he was a convicted felon and felt he would not be well-treated by the officer.Defense counsel moved for a judgment of acquittal, which the trial court denied.The jury convicted Turner of all charges, and Turner appeals.

Turner claims that he presented, as a defense to the charge of fleeing and eluding, unrebutted evidence that he was under duress.As well, he asserts that the state presented no evidence that he knew that his license was suspended.Therefore, as to those two charges he claims that the trial court erred in denying his motion for judgment of acquittal.

A de novo standard of review applies in reviewing a motion for judgment of acquittal.Pagan v. State,830 So.2d 792, 803(Fla.2002).In moving for a judgment of acquittal, a defendant admits the facts in evidence and every conclusion favorable to the adverse party that may be fairly and reasonably inferred from the evidence.Lynch v. State,293 So.2d 44, 45(Fla.1974).A court should grant a motion for judgment of acquittal only if "the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law."Id.The court should submit the case to the jury "where there is room for a difference of opinion between reasonable men as to the proof or facts from which an ultimate fact is sought to be established, or where there is room for such differences as to the inferences which might be drawn from conceded facts."Id.Generally, an appellate court will not reverse a conviction supported by competent substantial evidence.Pagan,830 So.2d at 803."If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction."Id.

Turner submits that his testimony as to the claim of duress, which would exonerate his conduct, was unrebutted.Therefore, it must be accepted by the trier of fact, and the trial court must enter a judgment of acquittal.In Dudley v. State,511 So.2d 1052, 1057-58(Fla.3d DCA1987), the court succinctly stated the impact of a criminal defendant's testimony:

It is well settled in Florida that a defendant's otherwise reasonable, unrebutted, and unimpeached testimony in a criminal case must be accepted by a trier of fact and—if such testimony is entirely exonerating, the trial court is obligated to enter a judgment of acquittal for the defendant on the crime charged.On the other hand, where the defendant's exonerating testimony (a) is not reasonable on its face, or (b) is contradicted by other evidence in the case, or (c) is otherwise impeached, the trier of fact is privileged to reject such testimony and convict the defendant of the crime charged, providing, of course, there is otherwise sufficient evidence of guilt.

(footnote omitted).The issue of an affirmative defense should not be resolved by a judgment of acquittal and should be submitted to the jury where the facts are disputed.SeeDias v. State,812 So.2d 487, 491(Fla.4th DCA2002).

To prove the defense of duress, a defendant must demonstrate six elements:

1) the defendant reasonably believed that a danger or emergency existed that he did not intentionally cause; 2) the danger or emergency threatened significant harm to himself or a third person; 3) the threatened harm must have been real, imminent, and impending; 4) the defendant had no reasonable means to avoid the danger or emergency except by committing the crime; 5) the crime must have been committed out of duress to avoid the danger or emergency; and 6) the harm the defendant avoided outweighs the harm caused by committing the crime.

Driggers v. State,917 So.2d 329, 331(Fla.5th DCA2005)(citing Fla.Std. Jury Instr.(Crim.) 3.6(k)).

Moreover, as this court has articulated:

A threatened harm that is "impending" is not only one that is "temporal, i.e. about to take place, but includes whether there is, no matter the lapse of time, a reasonable opportunity to escape the compulsion without committing the crime."Wright v. State,402 So.2d 493, 497 n. 6(Fla.3d DCA1981).An "imminent" danger is one which cannot be guarded against by calling for the protection of the law.Id.Thus, the defense does not apply where a defendant has an opportunity to escape the compulsion without committing the crime.Id.;seeGahley v. State,567 So.2d 456, 459(Fla.1st DCA1990);Corujo v. State,424 So.2d 43, 44(Fla.2d DCA1982).

Mickel v. State,929 So.2d 1192, 1196(Fla.4th DCA2006).

Turner provided equivocal testimony as to the elements of duress.While he testified that his cousin "flipped out" when the officer turned on his lights in an attempt to stop the vehicle, Turner did not mention the gun or any use of force until his cousin told him to turn onto another street.Thus, the evidence is equivocal as to whether the threat of harm was real when he eluded the police for eight blocks.Moreover, his testimony regarding the gun was not consistent, having testified at one point that he never saw the gun and that the friend, not his cousin, was carrying the gun.Secondly, the threat came from his cousin who allegedly pulled the gun on him, yet he refused to divulge his name or this danger to the officers when he finally did stop, because his cousin was "blood."His explanation that he would not divulge the name of someone who has threatened his life and was capable of inflicting mortal harm simply because he is a relative is less than reasonable.Finally, the officer contradicted his testimony, because...