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Barnes v. State

Florida Court of Appeals, Fifth District

February 3, 2017

RICHARD BARNES, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         Appeal from the Circuit Court for Seminole County, Donna L. McIntosh, Judge.

          James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Samuel A. Perrone, Assistant Attorney General, Daytona Beach, for Appellee.

          EVANDER, J.

         Barnes was convicted, after a jury trial, of first-degree murder. On appeal, he contends that there was insufficient evidence of premeditation to support a first-degree murder conviction.[1] In his supplemental brief, [2] he argued that defense counsel's failure to raise this issue below constituted ineffective assistance of counsel apparent from the face of the record. We agree. Accordingly, we reverse and remand this case to the trial court with instructions to enter a judgment of second-degree murder and to sentence Barnes accordingly.[3]

         The evidence presented below was that Barnes was an often-times homeless drug addict living in Orlando, Florida. He had previously been romantically involved with the victim. According to a statement Barnes gave to law enforcement, that romantic relationship ended approximately two months prior to the victim's murder. The victim had unsuccessfully sought to help Barnes overcome his drug addiction issues, even after their romantic relationship ended. For example, she would safe-keep Barnes' Electronic Balance and Transfer ("EBT") card because Barnes had sold or traded the card in the past to obtain illegal drugs.

         The victim owned an insurance agency office located in Sanford, Florida. She was murdered at approximately noon on January 6, 2014. Based on the testimony of two neighbors, Barnes was placed at the victim's office prior to, and immediately after, the sound of four rapid gunshots. Both of the neighbors had previously seen Barnes outside the victim's office doing odd jobs. One of the neighbors testified that she had previously witnessed Barnes and the victim interacting in a manner that led her to believe that they were involved in a relationship. A client found the victim's body in the victim's office within minutes after Barnes was seen quickly walking away from the scene.

         The medical examiner's testimony reflected that the victim had been shot four times. The officers that responded to the scene found some of the victim's desk drawers pulled open and disheveled in a manner consistent with someone rummaging through them. Other desk drawers appeared untouched. The victim's purse was located in one of the "untouched" drawers. Barnes' EBT card was found in the victim's purse. There was no evidence that any property had been taken from the victim's office.

         In a statement Barnes gave to the police two days later, he claimed that he had never left Orlando on January 6. However, an Orlando pastor testified that on the evening of January 5, he had provided Barnes with $40, in part, because Barnes had stated that he needed to obtain a bus pass to travel to Sanford. Notably, the EBT card was scheduled to be "reloaded" on January 9.

         At the conclusion of the State's evidence, Barnes' counsel unsuccessfully moved for a judgment of acquittal, arguing that there was a lack of evidence that Barnes had committed the homicide or that he possessed an intent to kill the victim. However, defense counsel failed to argue the sufficiency of the evidence (or lack thereof) regarding premeditation.

         After the denial of his motion for judgment of acquittal, Barnes testified on his own behalf. He acknowledged that he had known the victim for approximately two and one-half years and that they had been involved in a romantic relationship until a few months prior to her death. Barnes candidly acknowledged his drug addiction problem and explained that the victim retained his EBT card because he had previously used the cash on the card to buy illegal drugs. When the card was reloaded on the ninth day of each month, Barnes and the victim would grocery shop together.

         According to Barnes, he intended to travel to Sanford on January 9 to obtain his EBT card and go grocery shopping. He admitted receiving $40 from the Orlando pastor on the evening of January 5, but stated that he used the money to buy drugs instead of using it to travel to Sanford. Barnes denied being in Sanford on January 6, denied killing the victim, and denied being mad at the victim.

         At the conclusion of the defense's case, Barnes' counsel renewed the motion for judgment of acquittal. Once again, there was no argument directed to the sufficiency of the State's evidence on the element of premeditation. After the denial of the renewed motion for judgment of acquittal, defense counsel stipulated to the jury receiving the ...


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