Westbrooks v. State
| Decision Date | 13 June 2014 |
| Docket Number | Case No. 2D12-888 |
| Court | Florida District Court of Appeals |
| Parties | MARK A. WESTBROOKS, Appellant, v. STATE OF FLORIDA, Appellee. |
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
Appeal from the Circuit Court for
Hillsborough County; Emmett L. Battles,
Judge.
Howard L. Dimmig, II, Public Defender, and
Clayton R. Kaeiser, Special Assistant Public
Defender, Bartow, for Appellant.
Mark A. Westbrooks appeals his convictions for manslaughter (a lesser-included of felony murder), two counts of armed robbery, and four counts of attempted armed robbery. On appeal, Westbrooks claims that the trial court erred in denying hismotion for judgment of acquittal because the State did not rebut his hypothesis of innocence that he was not involved in the robbery. We affirm his convictions for the reasons expressed below.
At trial, the State proceeded on the theory that on November 11, 2009, Westbrooks and two other men drove to the Carver City area of Tampa to rob a group of men playing cards outside of a house. The men playing cards had been warned that a robbery was about to take place in Carver City, but they did not take the warning seriously. The men had witnessed a car drive by about twenty minutes prior to the incident. When the car returned, two masked perpetrators exited the car with guns in their hands. One of the perpetrators shot into the air and ordered everyone to the ground, and some of the men playing cards ran into a nearby house. One of the perpetrators robbed two of the men who remained outside, taking their jewelry, wallets, money, and phones. Another man tried to flee, but a second perpetrator shot him in the back, killing him. The perpetrators then returned to their car and drove away.
Greshawnta Hornsby, Westbrooks' ex-girlfriend, testified that she was with Westbrooks on the evening of November 11, 2009. Westbrooks received a phone call when Hornsby was sitting in his car with him around 7:30 or 7:40 that evening. Hornsby testified to the following: He then hung up the phone. The phone records confirmed that Westbrooks received a call from Chris Lemons at 7:40 that lasted forty-seven seconds and that Westbrooks received another call from Lemons at 7:41. Hornsby identified a photograph in evidence as being that of Westbrooks' car. It was the same car that shewas sitting in when he received the phone call about a "lick" in Carver City. Later, after Hornsby learned about the robberies and shooting in Carver City, she asked Westbrooks about it and he told her he had been in St. Petersburg with his car.
Several witnesses to the offenses, including victims, testified at trial and identified the car that the perpetrators drove. Brenda Green owned the home outside which the incident occurred. She testified that she heard gun shots around 8:30 in the evening and that the car driven by the perpetrators was louder than a normal car. She called 911.
Isaac Anderson, one of the victims, testified that the car drove by a first time and that he "heard the pipes go by." Then, about twenty minutes later, the car drove by again, but this time it stopped and the occupants got out. It was a greenish blue, four-door car, and he noticed a little dent on the back. When the occupants exited the car, the interior light came on and Anderson was able to tell that the interior was gray. The windows were darkly tinted. He identified the photos in evidence, which were photos of Westbrooks' car, as depicting the car involved in the offenses. The pipes on the car sounded like a deep roar.
Reginald Bass, another victim, testified that he heard a car pass by with pipes. It looked like a police car, but he realized it was not because he heard the pipes. It was either a Crown Victoria or a Mercury. It was the car that returned for the shooting. It was a four-door car that had a dent on the passenger side door towards the middle.
Randy Cochran testified that the car that returned for the offenses had loud "flow masters on it," which are dual pipes that make the "car faster, sound better."
Joseph Green testified that he was on his porch when he saw a car at the high school fifty to sixty feet away and that the car looked like a Mercury that was dark green in color. "It sounded like it had a big engine in it like it had pipes on it." A "black dude" with "long dreadlocks" got out, and he opened the trunk and put a t-shirt over the license tag. Two other people were in the car. The car drove by Green's house and turned. Thirty seconds later, he heard about six gunshots. He heard the car again, and he ran to his yard and saw the same car turn onto another street. He picked the car out of photographs shown to him, and he was able to identify it by a dent it had on the side. He paid attention to the car because "[s]omething ain't look right to me." The car had tinted windows.
Leslie Allen, another victim, testified that the car that stopped before the shooting was a "bluish, greenish Mercury Grand Marquis." He identified the car in the photo as being similar to the one at the shooting. It had tinted windows and no hub caps. He noticed the pipes as it was leaving and that it sounded like the same pipes he had heard earlier that evening when the car had driven by the first time.
Detective Camp identified the photos in evidence as depicting the Mercury Grand Marquis belonging to Westbrooks. It had a gray interior. Detective Camp also testified that he conducted a taped interview with Westbrooks about a week after the incident. In that conversation, Westbrooks told Detective Camp that he was with Chris Lemons and Chris Toombs in Tampa on the night of the shooting. He admitted that he had previously told Hornsby that his car was in St. Petersburg because he did not want her to bother him. He also denied to Detective Camp that anybody had access to his car that night other than him.
The State presented detailed evidence of phone calls made that night between Westbrooks, Toombs, Lemons, and Hornsby. The State introduced phone records and maps into evidence which showed the location of the towers from which all the calls were placed and received. The phone calls also showed that the group was in contact with a Matthew Grier, a person who several witnesses said was present at the location in Carver City for only a few minutes prior to the incident. Specifically, the records showed that Westbrooks was in contact with Lemons at 7:40 and 7:41. The records also showed that Grier called Toombs around 7:26 p.m. and that Toombs called Grier at 7:41. These early phone calls placed Westbrooks, Lemons, and Toombs in the area of Tampa where Toombs and Lemons lived. Grier and Toombs continued to make phone contact. Between 8:19 and 8:31, Grier made several phone calls to Toombs. The location of the cell tower indicated that at that point in time, Toombs was within six blocks of where the shooting occurred. Approximately twenty minutes later, Toombs called Grier again twice at 8:50, from an area with a cell tower seven or eight miles away, back in the area where Toombs and Lemons lived. Later phone calls showed that Toombs, Westbrooks, and Lemons remained back on their side of town. Then, at 2:11 a.m., a call was placed from Reginald Bass's stolen cell phone to Lemons but Lemons did not answer. Then, at 2:12, a call was placed from Leslie Allen's stolen cell phone to Lemons but Lemons did not answer. At 2:15, Lemons called Toombs. At 2:16, Lemons called Grier. At 2:21, Toombs called Grier. At 2:28, Lemons called Westbrooks. In sum, the phone activity clearly showed that Westbrooks, Lemons, and Toombs were in contact with each other much of the night and that between 8:00 and9:00, the hour surrounding the robbery, there was significant phone activity between Toombs and Grier which placed Toombs within blocks of the Carver City incident.
At the close of the State's case, Westbrooks moved for a judgment of acquittal, arguing that the circumstantial evidence was insufficient to sustain convictions for the offenses. The trial court denied the motion, and the jury found Westbrooks guilty of manslaughter (a lesser-included offense of felony murder) and as charged on the robbery and attempted robbery counts. He was sentenced to thirty years in prison on the armed robberies to be followed by ten years' probation and to 304.5 months in prison on the attempted armed robberies and the manslaughter, all to run concurrently.
Generally, a motion for judgment of acquittal should be denied "[i]f, 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." Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). However, in cases in which the evidence is "wholly circumstantial," a special standard of review applies: "the evidence must also exclude the defendant's reasonable hypothesis of innocence." Id.; see also Mosley v. State, 46 So. 3d 510, 526 (Fla. 2009) . "Under the circumstantial evidence standard, when there is an inconsistency between the defendant's theory of innocence and the evidence, when viewed in a light most favorable to the State, the question is one for the finder of fact to resolve and the motion for judgment of acquittal must be denied." Durousseau v. State, 55 So. 3d 543, 557(Fla. 2010). " 'The state is not required to "rebut conclusively every possible variation" of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with...
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