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State v. Brown

Florida Court of Appeal, Third District

November 9, 2011

The STATE of Florida, Appellant,
Tony BROWN a/k/a Andre Gonzalez, Appellee.

Page 694

Pamela Jo Bondi, Attorney General, Douglas J. Glaid, Senior Assistant Attorney General, and Forrest L. Andrews, Jr., Assistant Attorney General, for appellant.

Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellee.

Before CORTIÑAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.


In the early morning hours of an October day, Michael Morris (" Morris" ) and his friend, Nigel Whatley (" Victim" ), exited a nightclub and walked to a parking lot where Morris intended to show his new car to the Victim. After arriving at the vehicle, which was parked next to a street light, Morris and the Victim began talking and were approached by the defendant. The defendant demanded that they hand their money over to him. After a brief argument between the three men, Morris threw his money and car keys on to the floor, but the Victim told the defendant that he would have to shoot him. The defendant then pulled out a gun.

By chance, a car drove by at that moment and the defendant briefly lowered his weapon. The Victim and Morris took advantage of this and pounced on the defendant. During the fight, the Victim was shot and fell face down to the ground. Morris attempted to crawl away, but was shot in the chest by the defendant. After being shot, Morris observed the defendant go over to the Victim, and although the Victim was still lying face down on the ground, the defendant shot him again. Morris attempted to escape but was shot by the defendant in the leg. Nevertheless, Morris managed to make it to a nearby restaurant where he was found by a police officer and was rushed to a hospital. Morris provided a physical description of his assailant to the police. After investigating the scene of the crime, the police located a black skully cap approximately 11 feet from the Victim's body. The DNA found

Page 695

on the skully cap matched that of the defendant.

Approximately nine months later, on July 21, 2006, Detective Nanni met with Morris outside of his workplace and showed him a photo array. Morris identified the defendant, but did not sign the array. Two days later, on July 23, 2006, Morris met with Detective Nanni at the detective's office, again identified the defendant, and this time, in the course of a sworn statement, signed the photo array.[1] In his statement, Morris specified that the defendant had been wearing a skully cap at the time the crime was committed. Morris qualified his identification, however, by stating that he " was 60 percent certain" that the individual he selected from the array " is the person who shot [him] and murdered [the Victim]." He was not advised of the DNA match prior to making his identification. At trial, Morris explained:

I put 60 percent because I tend to quantify things based on my background. I am trained as a chemist; and it shows his face but it doesn't show someone wearing a [skully]. And to be fair, and in an abundance of caution, I said 60 percent.
Morris also affirmed that he would have been more comfortable identifying the photographs if the individuals pictured had been wearing skully caps.

When the defendant was first told by Detective Nanni that his DNA had been recovered near the Victim's body, he denied being at the crime scene at the time of the murder. Shortly thereafter he told the detective that he had been at the club, but had only been there to pick up a generator from his friend in the wake of a hurricane in late October 2005.[2] The defendant was unable to provide the name of his friend when asked by the detective.

At trial, the defendant's then-girlfriend testified that she was at the club with the defendant on the date of the murder. She testified that prior to entering the club, the two had parked outside and she applied make-up while the defendant removed a black skully cap and a white " do-rag" from his head in order to brush his hair. According to her, the defendant placed the white do-rag back on his head but put the black skully cap on his lap. She did not know what happened to the skully cap after they exited the car.

The girlfriend further testified that she remained at the club with the defendant until very near closing time, which happens to coincide with the approximate time of the incident. She stated that she and the defendant left the club in the defendant's car, and after driving for a few minutes received a call from her friend, " Blinky," who told her someone had been shot near the club. The girlfriend further testified that based on the description she received from Blinky, she feared one of her friends had been shot at the club and, therefore, she returned to the scene with the ...

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