Vega v. Sec'y, Dep't of Corrs.
| Decision Date | 28 September 2021 |
| Docket Number | 17-14778 |
| Parties | RICARDO VEGA, Petitioner-Appellant, v. SECRETARY, DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL, STATE OF FLORIDA, Respondents-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
DO NOT PUBLISH
Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:15-cv-00321-PGB-GJK
Before MARTIN, LUCK, and BRASHER, Circuit Judges.
Ricardo Vega robbed an Orlando area Mexican restaurant with a ball bearing ("BB") gun. A Florida jury convicted Vega of robbery with a deadly weapon. After his conviction was affirmed on direct appeal, Vega claimed that his trial counsel was constitutionally ineffective for failing to move for a judgment of acquittal because, under the Florida courts' interpretation of the robbery statute, the state did not prove that the BB gun Vega used to rob the restaurant was a deadly weapon. The state habeas court denied Vega's ineffective assistance of counsel claim because the evidence was sufficient to find that the BB gun was a deadly weapon and thus, trial counsel could not have been ineffective under Strickland v. Washington, 466 U.S. 668 (1984) for failing to move for a judgment of acquittal on that basis. The district court concluded that the state habeas court's determination that trial counsel was not ineffective was not contrary to, and was not an unreasonable application of, Strickland. After appointing counsel, reviewing the state court record and the briefs, and hearing oral argument, we agree and affirm.
The robbery and Vega's arrest
On the evening of September 27, 2005, law enforcement officers were watching Jalapeno's Restaurant in Orange County, Florida because it had been robbed the week before. While the officers were watching, Detective Brisinte saw a Hispanic man put on a black ski mask, pull out a handgun from his waistband, and enter the restaurant. The Hispanic man came out of the restaurant a short time later, took off his mask and ran behind the building. There, he ran into Detective Fink. But Det. Fink wasn't able to arrest the Hispanic man because he ran away into the nearby woods. Det. Brisinte ran after the Hispanic man but couldn't find him.
One of the victims inside Jalapeno's called 9-1-1. The victim told the 9-1-1 operator that someone wearing a black ski mask pointed a semi-automatic handgun at her and demanded money. In fear for her life, the victim gave the masked man $200 from the cash register.
A few days later, Detective Funk helped with the investigation of an armed home invasion robbery in Orange County. Law enforcement officers arrested Ricardo Vega for using a black BB gun, which looked like a semi-automatic handgun, in the home invasion. Det. Funk sent Vega's picture to Det Brisinte and Det. Fink. Det. Brisinte and Det. Fink were one-hundred-percent sure that Vega was the Hispanic man that they tried to arrest for the Jalapeno's robbery.
The trial
Vega was charged with robbery with a deadly weapon.[1] The information alleged that Vega "by force, violence, assault or putting in fear," took money from Azucena Zoriano "with the intent to temporarily or permanently deprive" her of the "right to the property and in the course of committing said robbery," Vega carried "a deadly weapon, to-wit: a BB gun or handgun."
At trial, the victim, Ms. Zoriano, testified that she was working at Jalapeno's on September 27, 2005-the night of the robbery. She headed over to one of the tables when a man with a mask entered the restaurant with a real-looking gun in his hand. The masked man pointed the gun at Ms. Zoriano and told her to "give me the money." Afraid that he was going to shoot her, Ms. Zoriano went to the cash register took out the money, and put it in a bag that the masked man had placed on the counter. While he was waiting for Ms. Zoriano to put the cash register money in the bag, the masked man demanded money from a customer standing by the register. But the customer said he didn't have any money, so the masked man took the bag with the cash register money and headed for the back of the restaurant. Ms. Zoriano couldn't identify the robber because of his mask.
Det. Brisinte testified that he was in the Jalapeno's parking lot on the night of September 27, 2005. Det. Brisinte saw a Hispanic man pace back and forth in front of the restaurant and look inside "several times." Then, the Hispanic man went to the front door, pulled down his hat into a ski mask with holes, took out what appeared to be a firearm, and pointed it at the folks inside the restaurant. Det. Brisinte saw the people inside the restaurant dive for cover. The masked man then went to the cash register and pointed the gun at Ms. Zoriano. The masked man took "what appeared to be money" and then walked out the front door. He put the gun in a bag, lifted the ski mask so it looked like a hat, and walked away towards the back of the restaurant. Det. Brisinte identified Vega as the masked man. Det. Fink, who was also with Det. Brisinte in the parking lot, approached Vega but Vega ran into a nearby wooded area. Det. Brisinte went into the woods but he didn't find Vega.
Det. Fink testified that he was behind the restaurant during the robbery. He was wearing a "smock" that said "sheriff" in large white letters across the front. When the robber left the restaurant and walked behind the store, Det. Fink confronted him with his department-issued shotgun and yelled "police, stop." The robber-holding the money bag-kept walking and then ran to the wooded area behind the restaurant. Det. Fink identified Vega as the man he confronted behind the restaurant after the robbery.
A week or so after the robbery, Det. Fink interviewed Vega. When Det. Fink walked into the interview room, Vega was nervous and wouldn't look at him. Det. Fink asked if Vega remembered him because he had a shotgun in Vega's face on the night of the robbery. Vega said, "I don't know, I'm on drugs, I was on drugs, I don't remember." When Det. Fink asked again if Vega remembered him, Vega jumped up and screamed for a correctional officer to "come and take him out of" the interview room.
After the state rested, Vega's trial counsel moved for a judgment of acquittal. He argued that the evidence was insufficient because only one witness, Det. Brisinte, identified Vega as the robber. The other witnesses either didn't see the robbery or couldn't identify Vega because the robber was wearing a mask. The state trial court denied the judgment of acquittal motion because Det. Brisinte saw Vega rob Jalapeno's and it was for the jury to determine his credibility. As to "each one of the elements" of robbery with a deadly weapon, the state trial court said, "there is something that has been said about them that the jury may interpret in the light most favorable to the state."
At the end of the state's rebuttal case, Vega's trial counsel renewed his judgment of acquittal motion. The state trial court denied the renewed motion because there was evidence that, if the jury believed it, would support a conviction for robbery with a deadly weapon.
The jury found Vega guilty of robbery with a deadly weapon as charged in the information. The state trial court sentenced Vega to life imprisonment. The state appellate court affirmed Vega's conviction and sentence.
Postconviction motion
Vega moved for postconviction relief under Florida Rule of Criminal Procedure 3.850. Vega claimed that his trial counsel "was ineffective in failing to [move] for judgment of acquittal as to the robbery verdict, when the [s]tate failed to introduce at trial the BB gun alleged by the charging information."[2] The state, Vega argued, "offered no proof to show that the BB gun is a deadly weapon" and "Florida law does not provide that a BB gun is a deadly weapon." If a "BB pistol is not introduced at trial," Vega continued, "where it may be inspected and tested by the jury a conviction for robbery with a deadly weapon will not be sustained." His trial counsel, Vega said, "should have moved for judgment of acquittal in this matter as reasonable jurists would conclude that a BB gun is not a deadly weapon." "[T]here stands a reasonable probability that had counsel moved for a judgment of acquittal as to the robbery verdict based on the foregoing the motion would have been granted, or if denied, the issue preserved for appellate review supported by substantial case law that would warrant reversal."
The state habeas court denied Vega's claim that his trial counsel was ineffective for failing to move for a judgment of acquittal because the state offered no proof that the BB gun was a deadly weapon and the BB gun was not introduced at trial and could not be inspected by the jury. The state habeas court found that Vega was charged with using a BB gun to commit the Jalapeno's robbery, rather than a firearm, because "he was caught with a BB gun 'replica' of a semiautomatic pistol when committing a home invasion robbery three days later."
As to Vega's claim that his trial counsel should have moved for a judgment of acquittal because the state offered no proof to show that the BB gun was a deadly weapon, the state habeas court found that "[t]he testimony at trial was sufficient to convict of robbery with a deadly weapon." The state habeas court pointed to Ms. Zoriano's testimony, "[w]hen asked if the gun appeared real," that, "I believe it was, yes." And the state habeas court relied on Det. Brisinte's testimony that he was familiar with firearms and the gun Vega used during the robbery "appeared to be a firearm"-"a regular gun that shoots bullets."
As to Vega's claim that trial counsel was ineffective because a judgment of acquittal motion...
To continue reading
Request your trial