West v. State

• Decision Date: 04 September 1991
• Docket Number: No. 90-0609,90-0609
• Citation: 585 So.2d 439
• Parties: 16 Fla. L. Weekly D2287 Leroy WEST, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 439

585 So.2d 439

16 Fla. L. Weekly D2287

Leroy WEST, Appellant, v. STATE of Florida, Appellee.

No. 90-0609.

District Court of Appeal of Florida,

Fourth District.

Sept. 4, 1991.

Rehearing Denied Oct. 9, 1991.

Richard L. Jorandby, Public Defender, and Jill Hanekamp, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Carol Cobourn Asbury, Asst. Gen., West Palm Beach, for appellee.

PER CURIAM.

We agree with appellant, Leroy West, that the trial court erred in failing to direct a verdict in his favor because of the insufficiency of the evidence.

Appellant was charged with first degree murder along with two actual assailants. There was evidence presented that the two assailants attempted to rob the occupants of an automobile and in so doing shot and killed one of the occupants. Immediately before the shooting the two got out of a car in which West and Willie Johnson were passengers. Subsequently, West drove the vehicle away and later picked up the two assailants a short distance away from the area of the shooting.

Johnson testified for the prosecution. He was not charged with any crime arising from the incident. According to Johnson, he and West were passengers in the car driven by one of the assailants. He stated that there had been no discussion about any crime while he and appellant were in the vehicle. However, while the car was stopped in traffic at a stop sign, one of the assailants suddenly directed the appellant to take the wheel. Both assailants then exited the vehicle. West and Johnson did not see the assailants again until they returned to the area a brief time later and the assailants got back in the car a short distance away from where they had exited the vehicle. It was only then that Johnson learned of the shooting. Later West, Johnson and the two assailants asked West's sister to hold a bag containing guns for them. ¹ When appellant was told the police were looking for him he turned himself in. In essence, Johnson claimed no knowledge of any plan to rob or of any weapons until after the incident was over.

On appeal, West claims that the proof demonstrates that he, like Johnson, had no prior knowledge that the assailants were going to attempt a robbery when they exited the vehicle and did not even know they were armed. The state concedes that it had the burden of proving West's intent to participate in the robbery in order to sustain his conviction. The state claims that West's presence in, and driving of the car, along with his later attempts to hide the guns is enough to sustain the conviction. ² We cannot agree.

In Staten v. State, 519 So.2d 622, 624 (Fla.1988), the Florida Supreme Court acknowledged the general rule that "[i]n order to be convicted as a principal for a crime physically committed by another, one must intend that the crime be committed and do some act to assist the other person in actually committing the crime." See also Fla.Stat. Sec. 777.011 (1985); Collins v. State, 438 So.2d 1036 (Fla. 2d DCA 1983). The Staten court noted further that neither knowledge that the offense is being committed nor mere presence at the scene nor a display of questionable behavior after the fact is equivalent to participation with criminal intent. 519 So.2d at 624. See also Collins, 438 So.2d at 1038. ³ In Stark v. State, 316 So.2d 586, 587 (Fla. 4th DCA 1975), cert. denied, 328 So.2d 845 (Fla.1976), this court held that when the state relies on the aiding and abetting theory, it can prove intent either by showing that the defendant had requisite intent himself or that he knew the principal had that intent. While the evidence of intent may be circumstantial, it must exclude every reasonable inference that the defendant did not intend to participate in criminal activities. W.B. v. State, 554 So.2d 577, 578 (Fla. 3d DCA 1989); Shockey v. State, 338 So.2d 33, 35 (Fla. 3d DCA 1976). In Stuckey v. State, 414 So.2d 1160, 1161 (Fla. 3d DCA 1982), the court addressed factual circumstances similar to those involved herein. The court concluded that the defendant's conduct in driving the actual perpetrator to the scene of the crime in combination with other questionable after-the-fact behavior was insufficient to sustain a conviction even though such evidence might suggest guilt. Such evidence was held to be insufficient as a matter of law to exclude a reasonable hypothesis of Stuckey's innocent presence at the scene that could be drawn from the same evidence.

In this case, the state affirmatively presented evidence, in the form of Johnson's testimony, that actually negated West's knowledge that a crime was about to be committed. The circumstances of the crime itself, as described by Johnson, also suggests a spontaneous decision by the assailants to commit the crime. The state presented no evidence and does not claim, for instance, that the two assailants planned, and knew in advance, that the automobile attacked would arrive in traffic at the precise time and location involved. If anything the evidence suggests that the crime was committed on the spur of the moment without notice to West and Johnson. At least, this is a reasonable inference to be drawn from the evidence presented. Those cases where circumstantial evidence has been held sufficient to support a guilty verdict for one not directly active in the crime involved much stronger evidence of intent. See, e.g., Staten n. 1 Shockey (there was evidence the defendant was involved in arranging the crime).

As the court held in Stuckey, the lack of sufficient evidence, direct or circumstantial, of West's intent to participate in the robbery precludes his conviction for murder in the shooting death that occurred during the robbery.

Accordingly, we reverse and remand with directions that West be discharged. ⁴

ANSTEAD and POLEN, JJ., concur.

GARRETT, J., dissents with opinion.

GARRETT, Judge, dissenting.

I respectfully dissent. We should affirm appellant's conviction and sentence. "The question of whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury verdict [an appellate court should] not reverse." State v. Law, 559 So.2d 187, 188 (Fla.1989). The supreme court further stated:

It is the trial judge's proper task to review the evidence to determine the presence or absence of competent evidence from which the jury could infer guilt to the exclusion of all other inferences. That view of the evidence must be taken in the light most favorable to the state. [Citation omitted.] The state is not required to 'rebut conclusively every possible variation' [footnote omitted] of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant's theory of events. [Citation omitted.] Once that threshold burden is met, it becomes the jury's duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt.

Id. at 189.

I believe that the state met its threshold burden and created a jury issue as to whether the evidence was sufficient to exclude every reasonable hypothesis of innocence. The appellant claimed as his theory of the events that he had no prior knowledge that the assailants were armed or about to attempt a robbery. The state, however, introduced substantial, competent evidence that was inconsistent with appellant's theory of the events. Obviously, the jury determined that the evidence excluded every reasonable hypothesis of innocence beyond a reasonable doubt.

Only Willie Johnson, the other rear...