Wagner v. State, 4D03-1564.

• Decision Date: 17 March 2006
• Docket Number: No. 4D03-1564.,4D03-1564.
• Citation: 921 So.2d 38
• Parties: Miguel WAGNER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

921 So.2d 38

Miguel WAGNER, Appellant, v. STATE of Florida, Appellee.

No. 4D03-1564.

District Court of Appeal of Florida, Fourth District.

January 25, 2006.

Rehearing Denied March 17, 2006.

Carey Haughwout, Public Defender, and Michael Antinori, Assistant Public Defender, West Palm Beach, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

A jury found Miguel Wagner guilty of second degree murder, robbery with a firearm, and five counts of aggravated assault with a firearm while wearing a mask. We reverse the second degree murder conviction and affirm the others.

The second degree murder charge in this case arose out of an armed robbery gone bad. Appellant and his partner, Chris Pucci (Pucci), donned masks and, armed with a machine gun and a revolver, robbed a consignment store. As they fled the scene, they were pursued by Deputy Frank Wear. The chase ended with Pucci being shot and killed by Deputy Wear. At trial, appellant's defense to the murder charge was that Pucci was suicidal and forced his own death at the hands of the police officer.

Deputy Wear described the chase. He testified that he followed the van, which was being driven by Pucci, as it traveled down Powerline Road and made two turns down side streets. When the van suddenly stopped, Deputy Wear stopped behind it. The van then made a U-turn and, as it turned, Pucci pointed a machine gun at the deputy. Seeing the gun pointed at him, Deputy Wear gunned his accelerator and slammed into the van. He then quickly exited his vehicle, turned and fired three rounds into the van's driver's side door, and ran away.

Appellant got out of the van and ran away. Pucci exited and ran alongside the van as Deputy Wear yelled for him to drop his weapon. When Pucci turned towards Deputy Wear and pointed his weapon, Deputy Wear fired again, striking Pucci. Pucci fell forward and, as Deputy Wear emerged from behind his vehicle, he saw Pucci lying in the bushes by the sidewalk holding the machine gun by his side, moving slightly as if trying to roll over. Deputy Wear approached Pucci and directed him to drop his weapon. When Pucci did not do so, Deputy Wear fired several more rounds at Pucci, killing him.

Pucci's girlfriend, Mitzi Turner (Turner), also testified at trial. She stated that Pucci had spent the night at her home on the evening prior to the robbery and, during the day, recorded a video which he left with a note telling Turner to watch the video. According to Turner, Pucci was upset over having to turn himself in to jail for a parole violation and told her that he would die before he went back to jail. Turner said that Pucci had attempted suicide eight years before and appeared to be "going off a cliff."

On cross-examination, appellant sought to question Turner about the video, but the court would not allow such questioning, finding it to be outside the scope of the state's direct examination of the witness. In addition, the court ruled that any probative value was outweighed by prejudice and confusion and that none of the testimony concerning Pucci's video was relevant to any issue in the case.

Appellant proffered the video, arguing that it was relevant to the issue of whether Pucci's death occurred as a consequence of and during the commission of the crime. Counsel argued that it was for the jury to determine whether, at the time Pucci turned the van around and pointed the machine gun at the officer without firing, and then again, when he exited the van and pointed the weapon at the officer without firing, the commission of the robbery had ended and Pucci was acting independently to commit his suicide. The court denied the request and excluded the evidence, ruling that it was inadmissible because "Mr. Pucci's state of mind prior to robbery is not relevant to any issue of this case."

In the video, Pucci, who was crying, spoke to Turner and the rest of his family. He told them he loved them and apologized for having disappointed them throughout his life. He said that he was about to do something "retarded," that he felt he would never get things right in his life, and that he would see them in heaven. He stated that "today is do or die" and then directed that his personal effects be distributed to his nieces and to Turner's boys. He apologized for failing everyone.

In addition, citing potential juror confusion, the court denied appellant's request to call as an expert a doctor who would give his opinion on "suicide by cop." Further, while the court allowed defense counsel to argue that Pucci's death was a "suicide-by-cop" situation, the court denied appellant's request for an independent act jury instruction. On appeal, appellant argues that the court denied him the right to present his defense to the murder charge by excluding all evidence which would have supported that defense and by denying his request for an independent act jury instruction. We agree.

A defendant has a constitutional right to present a defense. See generally Casseus v. State, 902 So.2d 294 (Fla. 4th DCA 2005). The trial court must protect that right when considering whether to exclude evidence. Id. at 296. Although some evidentiary rulings are reviewed under the relevancy standard, other considerations must also be taken into account. See Neiner v. State, 875 So.2d 699, 700 (Fla. 4th DCA 2004). What is relevant to show a reasonable doubt may differ from what is relevant to show the commission of the crime itself. Id. (citing Vannier v. State, 714 So.2d 470, 472 (Fla. 4th DCA 1998)). "Where evidence tends in any way, even indirectly, to establish a reasonable doubt of defendant's guilt, it is error to deny its admission." Id. (quoting Rivera v. State, 561 So.2d 536, 539 (Fla.1990)).

Section 782.04(2)d, Florida Statutes, states that the killing of a human being, which occurs while a defendant is "engaged in the perpetration of" a robbery is murder in the first degree, or felony murder. "The term `in the perpetration of' includes the period of time when a robber is attempting to escape from the scene of the crime." Parker v. State, 570 So.2d 1048, 1051 (Fla. 1st DCA 1990)(citing Hornbeck v. State, 77 So.2d 876 (Fla. 1955)). Absent some "definitive break in the chain of circumstances beginning with the felony and ending with the killing, the felony, although technically complete, is said to continue to the time of the killing." Id. (quoting Mills v. State, 407 So.2d 218, 221 (Fla. 3d DCA 1981)). The State must prove that there was no break in the chain of circumstances beginning with the felony and ending with the murder. Santiago v. State, 874 So.2d 617, 621 (Fla. 5th DCA 2004).

Factors such as "the relationship between the underlying felony and the homicide in point of time, place and causal relationship" are important in determining whether there was a break in the chain of circumstances. Id. In the case of flight, an important consideration "is whether the fleeing felon has reached a `place of temporary safety.'" Id. (quoting LaFave, Substantive Criminal Law § 7.5 (1986)); accord State v. Williams, 776 So.2d 1066, 1070 (Fla. 4th DCA 2001). If the killing is "a predictable result of the felonious transaction," "[n]either the passage of time nor separation in space from the felonious act to the killing precludes a felony murder conviction." Stephens v. State, 787 So.2d 747, 757 (Fla.2001)(citing Campbell v. State, 227 So.2d 873 (Fla.1969)).

In Ray v. State, 755 So.2d 604, 609 (Fla.2000), the supreme court explained:

The "independent act" doctrine arises when one cofelon, who previously participated in a common plan, does not participate in acts committed by his cofelon, "which fall outside of, and are foreign to, the common design of the original collaboration." Dell v. State, 661 So.2d 1305, 1306 (Fla. 3d DCA 1995) (quoting Ward v. State, 568 So.2d 452 (Fla. 3d DCA 1990)). Under these limited circumstances, a defendant whose cofelon exceeds the scope of the original plan is exonerated from any punishment imposed as a result of the independent act. Id. See also Parker v. State, 458 So.2d 750 (Fla.1984). Where, however, the defendant was a willing participant in the underlying felony and the murder resulted from forces which they set in motion, no independent act instruction is appropriate. [citations omitted].

In this case, appellant sought an independent act instruction...