Williams v. State, 87-1599

• Decision Date: 13 September 1988
• Docket Number: No. 87-1599,87-1599
• Parties: 13 Fla. L. Weekly 2130 Robert L. WILLIAMS, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 212

531 So.2d 212

13 Fla. L. Weekly 2130

Robert L. WILLIAMS, Jr., Appellant, v. STATE of Florida, Appellee.

No. 87-1599.

District Court of Appeal of Florida,

First District.

Sept. 13, 1988.

Michael E. Allen, Public Defender, and Maria Ines Suber, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Bradley R. Bischoff, Asst. Atty. Gen., Tallahassee, for appellee.

JOANOS, Judge.

Appellant Robert L. Williams, Jr., appeals his conviction and the sentences imposed after a jury found him guilty of attempted first degree murder and armed robbery. Appellant alleges error in the trial court's denial of his motions for judgment of acquittal, and the imposition of sentences which exceeded the recommended guidelines sentencing range. We affirm.

The events which resulted in the attempted first degree murder and armed robbery convictions which are the subject of this appeal, occurred in the early morning hours of February 19, 1987. At that time, the night-shift attendant of a truckstop in Madison County, Florida, was attacked and robbed of the night's receipts. The attendant fortuitously survived the attack, but suffered a permanent memory lapse with regard to the events of that night. At trial, he testified that he remembered going to work on the night of February 18, 1987, performing his customary shift-change duties, and waving at a passing deputy. However, he remembers no other events of that night, including events prior to the attack.

The medical evidence established that the attendant had been dealt five to seven blows to the head with a blunt, but sharp instrument like a crowbar. The attendant was discovered about 5:30 a.m., lying comatose in a pool of blood. He suffered extensive fracturing of the head and face, severe concussion, loss of memory, and permanent brain damage. The neurosurgeon who treated the attendant testified that his memory loss was due to the concussion and brain damage which resulted from the beating.

Other evidence at trial revealed that appellant became a suspect in the case after his cousin, Broderick Monlyn, was arrested on burglary charges. The police chief testified that on March 19, 1987, while Monlyn was being held in jail on the burglary charges, appellant told police officers that Monlyn had committed the burglaries for which he had been arrested, and, in addition, had committed the truckstop robbery and beating. Appellant also advised the officers that the weapon used in the attack was in the trunk of Monlyn's car. The chief further testified that on the morning after the attack and robbery, appellant said Monlyn came to his [appellant's] apartment and asked appellant to find out how the man at the truckstop was doing. Appellant said when he told Monlyn the man was nearly dead, Monlyn replied, "Good." Later, the chief talked with Monlyn, telling him that appellant had named him [Monlyn] as the person responsible for the attack on the attendant. Monlyn then told officers that appellant was the guilty party.

Monlyn testified that he was staying at his grandmother's house on the night of the robbery, and that appellant awakened him in the early morning hours with a request for money. When Monlyn told him he had no money, appellant proposed that they rob the truckstop. Monlyn refused, then appellant asked him to go along as a lookout. At first, Monlyn hesitated, then agreed to go. Monlyn stated appellant went into a back room of the house, and returned with socks on his hands; Monlyn then put socks on his hands as well. According to Monlyn's testimony, when the two went outside, appellant picked up a crowbar which was propped against the house, telling Monlyn he had placed it there.

A truck was parked at the pumps when the two arrived at the truckstop. As they waited for the truck to leave, Monlyn's testimony indicates that appellant said he would lure the attendant to the back of the building so that Monlyn could hit him. Monlyn refused, and was about to leave when appellant stopped him. Appellant then leaned the crowbar against the building, and walked around to the front where he engaged the attendant in conversation. Monlyn stated appellant returned to the back of the building, fumbled around a stack of tires, retrieved the crowbar, and then called to the attendant. When the attendant came out, appellant swung the crowbar. Monlyn said he told appellant he had killed the man; Monlyn then panicked and left.

After returning to his grandmother's house, Monlyn watched by the window. When appellant returned, Monlyn saw that he still had the crowbar in his hand. As Monlyn watched, appellant pitched the crowbar by the water pump, and then left. Monlyn went to sleep. However, before he went to work later in the morning, Monlyn wiped the crowbar with a rag and threw it under the house. According to Monlyn, he borrowed twenty dollars from appellant the day after the robbery. Monlyn said appellant gave him a fifty dollar bill, and Monlyn later returned thirty dollars to appellant.

During cross examination, Monlyn stated he was in jail on a burglary charge when officers first talked to him about the truckstop robbery. When asked if that was when he told officers about appellant's involvement in the robbery, Monlyn responded that he told about appellant's involvement after appellant voluntarily reported to the police that he [Monlyn] was responsible for the truckstop robbery and attack.

Appellant testified in his own defense, giving a somewhat altered version of the events in question. According to appellant, on the morning after the robbery, Monlyn told appellant that he [Monlyn] was close by when the attack and robbery occurred. Appellant then stated that Monlyn sent him to see how the attendant was doing, and that Monlyn responded, "Good," when told that the attendant was near death. ¹ In addition to conflicting with Monlyn's version of events, appellant's trial testimony was inconsistent on direct and cross examination, and inconsistent with earlier statements he had given to police, as well. For example, appellant denied telling the police that Monlyn was involved in the truckstop crimes, but he admitted telling the police that Monlyn told him to check on the man who had been attacked. During direct examination, appellant denied knowing a former employee of the truckstop, denied knowledge of the place where the truckstop receipts were secreted during the night shift, and denied lending money to Monlyn on the day after the robbery. During cross examination, appellant again denied, then admitted, knowing a former employee of the truckstop. Appellant also stated that he spent the night of the robbery at his grandmother's house, but admitted that during his first interview with the police, he said he spent the night of the robbery with his girl friend.

At the conclusion of the state's case, defense counsel moved for judgment of acquittal, on the ground that the evidence was insufficient to support a finding of guilt. The motion was denied. The motion was renewed, and again denied, after the defense rested its case. The jury found appellant guilty as charged on both counts.

At sentencing, the state offered four arguments, together with supporting authority, as the basis for a sentence in excess of the recommended guideline sentence. Briefly stated, the state's four arguments for departure were predicated on: (1) the excessive force used in the attack, (2) appellant's unscoreable subsequent offenses, (3) appellant's recent release from prison, and (4) appellant's inside information which led to the crime. The trial court did not articulate reasons for departure at sentencing. Instead, in pronouncing sentence, the court stated:

I do find there are adequate legal reasons for departing from the guidelines, and it is the sentence of the Court that you be committed to the Department of Corrections for a term of 30 years on each count to run concurrent, but consecutive to any other sentence now imposed.

The subsequently filed written statement of reasons for departure essentially tracks the state's rationale for a sentence in excess of the recommended guidelines sentencing range.

Appellant's first challenge is directed to the trial court's denial of his motion for judgment of acquittal with respect to the charge of attempted first degree murder. In essence, appellant argues that the factual circumstances were insufficient to establish that he had a premeditated intent to kill, and that the reasonable inferences which could be drawn from the evidence are as consistent with a finding that he did not have a specific intent to kill as with a finding that he did have such a specific intent.

A motion for judgment of acquittal must fully set forth the grounds upon which it is based. Fla.R.Crim.P. 3.380(b). Therefore, a general "boilerplate" motion is insufficient to preserve the issue for review. Johnson v. State, 478 So.2d 885 (Fla. 3d DCA 1985). In addition, the party moving for judgment of acquittal admits the facts and evidence adduced, as well as every conclusion favorable to the adverse party that the jury might fairly and reasonably infer from the evidence. Peacock v. State, 498 So.2d 545, 546 (Fla. 1st DCA 1986); Ambrister v. State, 462 So.2d 43, 45 (Fla. 1st DCA 1984), pet. for review denied, 467 So.2d 1000 (Fla.1985). The test is whether the state produced competent evidence to support every element of the crime. Peacock, 498 So.2d at 546.

Application of these principles to this case demonstrates that the elements of attempted first degree murder include: (1) a premeditated design and specific intent to commit the underlying crime of murder, and (2) an overt act designed to effectuate that intent, carried beyond mere preparation, but falling short of executing the ultimate design. Amlotte v. State, 456 So.2d 448, 449 (Fla.1984); Sireci v. State, 399 So.2d 964, 967 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d...