Yacob v. State

• Decision Date: 27 March 2014
• Docket Number: No. SC11–2505.,SC11–2505.
• Citation: 136 So.3d 539
• Parties: Michael M. YACOB, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

136 So.3d 539

Michael M. YACOB, Appellant,

v.STATE of Florida, Appellee.

No. SC11–2505.

Supreme Court of Florida.

March 27, 2014.

Nancy Ann Daniels, Public Defender, and Nada Margaret Carey, Assistant Public Defender, Tallahassee, FL, for Appellant.

Pamela Jo Bondi, Attorney General, and Stephen Richard White, Assistant Attorney General, Tallahassee, FL, for Appellee.

PER CURIAM.

Michael M. Yacob, who was twenty-two years old at the time of the crime, was convicted of first-degree murder and armed robbery with a firearm in the May 2008 death of nineteen-year-old Moussa Maida. The trial court, in accordance with the jury's recommendation, sentenced Yacob to death for the murder. This is Yacob's direct appeal from his judgment of conviction and sentence of death. We have jurisdiction. Seeart. V, § 3(b)(1), Fla. Const.

We affirm the convictions for first-degree murder and armed robbery with a firearm, but we vacate the sentence of death because we conclude that a death sentence in this case is not proportionate to other cases in which the sentence of death has been upheld. In fact, we conclude after careful review that this case is indistinguishable from other cases involving the single aggravator of a murder during the commission of a robbery where we have vacated the death penalty. Accordingly, we vacate Yacob's death sentence and remand for imposition of a sentence of life imprisonment without the possibility of parole.

I. BACKGROUND

In March 2010, a grand jury indicted Yacob for first-degree murder and armed robbery with a firearm for the May 2008 robbery of a Jacksonville convenience store and murder of the store's clerk. The jury trial was held in October 2011.

A. Guilt Phase

The evidence presented at trial included both eyewitness testimony and audio-video recordings from security cameras of the events that occurred on Sunday morning, May 4, 2008. Before 8 a.m., a car cruised past the closed Snappy Food store, returned, and parked across the street from the store. Soon thereafter, nineteen-year-old Moussa Maida arrived at the family-owned store, unlocked the front door, and, once inside, lit the “open” sign in the store's window. Maida walked to the end of the glass-encased cashier's booth, entered, and began filling the cash registers.

Not long after Maida entered the store, Yacob exited the car parked across the street. Yacob wore dark pants and a loose-fitting camouflage jacket, the hood of which covered his head. A mask covered his face, and he wore an orange, plastic glove on his left hand. Yacob quickly crossed the street and entered the store. He then walked down an aisle away from the cashier's booth.

Having heard the buzzer sound when Yacob entered, Maida soon exited the cashier's booth. Walking along in front of the booth toward the front door, he looked down each aisle for the customer. He soon encountered Yacob, who pointed a loaded nine millimeter semi-automatic gun at him and said, “Money.” Maida put his hands in the air and led Yacob into the cashier's booth. Pointing the gun at Maida with both hands, Yacob ordered Maida to fill a plastic bag with money, and Maida complied, emptying the cash and change from each register into the bag. Yacob then said, “safe, safe,” and Maida responded that there was no safe but gave Yacob cash stored beneath the counter.

Yacob reached down and grabbed a cell phone that belonged to the store and then, in reference to the security camera, asked if there was a videotape or CD. Maida told Yacob that there was no videotape or CD and then stood up, hands in the air, and gave Yacob the remote control. Still compliant and his hands up, Maida again knelt down.

Holding the plastic bag of money, Yacob exited the cashier's booth, and Maida stood up. Rounding the corner of the booth as he headed for the front door, Yacob pocketed the gun but kept an eye on Maida. Just as he passed the midpoint of the booth, Yacob saw Maida move to the counter and reach underneath it. Maida flipped a switch that magnetically locked the store's front door and then moved quickly toward the door of the cashier's booth.

Upon seeing Maida's maneuver, Yacob pulled the gun out of his pocket and pointed it toward Maida as he ran back to the door of the cashier's booth. Maida, however, reached the booth's door first and was locking it when Yacob arrived. Yacob immediately fired a shot that hit the door frame. Yacob then dropped the plastic bag full of money, and holding the gun with both hands, pointed it at Maida and fired. The bullet traveled through the thick glass door, striking Maida in the chest.

Yacob ran to the store's front door but was unable to escape because burglar bars and the locked glass door prevented him from doing so. Yacob spent the next several minutes trying to figure out how to escape. He first hit the door with his gun and shot at it, breaking the exterior glass. Then, he ran to the cashier's booth and shouted for Maida to open the door. Yacob returned to the door and put the plastic bag of money on a nearby table. However, the unstable bag fell, emptying its contents on the floor, and Yacob began gathering the money and placing it in his pockets. After putting the gun down, he finally succeeded in pulling some of the burglar bars in the door sufficiently apart so that he could squeeze between them and exit the store. Before escaping, he reached back into the store and retrieved his gun, although he left behind the plastic bag that initially contained the stolen money. He then ran to the waiting car, jumped into the passenger side, and fled the scene.

Anthony Hardy, a regular customer who had entered the store unnoticed, quickly hid when he heard the voices and gunshots. After observing Yacob's escape efforts, Hardy went to the front of the store, exited through the opening Yacob had created, and ran into the parking lot calling for someone to phone 911. Then, he went back into the store and tried unsuccessfully to break into the cashier's booth to help Maida, who was already dead.

The medical examiner testified that the bullet entered Maida's chest and traveled through his heart and right lung and into his back. As a result, Maida suffered rapid blood loss that quickly resulted in unconsciousness and death in little more than a minute.

Blood was found on the floor near the store's front door, the interior and exterior handles of the door, a plastic bag, and a five-dollar bill. The DNA from these blood samples matched the DNA from a cheek swab subsequently obtained from Yacob. The probability of the DNA from the murder scene matching anyone other than Yacob, who is African–American, was one in fifty-nine quadrillion among African–Americans. In addition, latent prints lifted from the plastic bag that the masked robber handled also matched Yacob's palm and finger prints. Moreover, Yacob's height and weight were consistent with that of the masked robber in the store's security video and Hardy's eyewitness description.

At the close of the State's case, the defense's motion for judgment of acquittal was denied. Defense counsel announced that no defense witnesses would be called, and after Yacob waived his right to testify, the defense rested. The next day, the trial court denied the defense's renewed motion for judgment of acquittal. The jury found Yacob guilty as charged of first-degree murder and armed robbery with a firearm. The murder conviction was premised on the alternative grounds of both premeditated murder and felony murder based on the commission of an armed robbery with a firearm.

B. Penalty Phase

Discussions regarding a penalty phase in the event of a guilty verdict began shortly before the guilt phase of trial ended. Defense counsel indicated that previously he had videotaped interviews with several potential witnesses who lived in Seattle. Before moving to Jacksonville to live with his father and his family, Yacob had lived with his mother and attended high school in Seattle. Counsel stated that it was his intent to present “snippets” from those unsworn interviews during the penalty phase. Upon the prosecutor's request, the trial court instructed counsel to provide the prosecutor with copies of the videotaped interviews immediately.

The jury returned the guilty verdicts on October 6, 2011. At a hearing a week later, the defense presented a list of eight mitigation witnesses—five from Seattle (Yacob's mother, grandmother, and three teachers) and three from Jacksonville (Yacob's father, stepmother, and the defense investigator). Counsel reiterated that the videotapes of the interviews of the five Seattle witnesses would be presented. Noting that the defense had not yet provided copies of the videotaped interviews, the prosecutor objected on the basis that he could not cross-examine the Seattle witnesses and they were not under oath. The trial court ruled that the videotaped interviews were inadmissible hearsay.

Defense counsel then informed the trial court that Yacob wished to waive calling any mitigation witnesses, except the defense investigator David Douglas. Although Yacob did not waive presentation of all mitigation, the trial court immediately conducted a hearing pursuant to Koon v. Dugger, 619 So.2d 246, 250 (Fla.1993), which “require[s] the defendant to confirm on the record that ... despite counsel's recommendation, he wishes to waive presentation of penalty phase evidence.” Under oath and after the trial court's inquiry, Yacob affirmed that because he did not wish to cause his family further pain, he wanted only the defense investigator to testify. In light of this development, the trial court ordered that Douglas be deposed under oath.

Before the commencement of penalty-phase proceedings, the trial court reviewed a recording of the defense investigator's deposition. After hearing argument, the trial court ruled that Douglas could testify only to those matters within his personal knowledge and could not testify to matters that were...