ROBERT W. ALVAREZ, Appellant,
STATE OF FLORIDA, Appellee.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Charles E. Burton, Judge; L.T. Case No.
Valarie Linnen, Atlantic Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Melanie Dale
Surber, Senior Assistant Attorney General, West Palm Beach,
W. Alvarez appeals his convictions and three life sentences
after a trial by jury. On appeal, he raises two issues: the
trial court erred by (1) denying his motion for judgment of
acquittal where the evidence against him was wholly
circumstantial, and (2) improperly allowing gruesome
photographs into evidence. We affirm without discussion the
second issue and explain our affirmance on the first issue.
and a codefendant were indicted for two counts of first
degree murder with a firearm while wearing a mask and one
count of robbery with a firearm while wearing a mask. The
indictments concerned a convenience store robbery occurring
around 11:46 p.m., in which two store clerks were killed. A
significant portion of the crime was captured on surveillance
video, but due to the masks, the faces of the assailants
could not be discerned. From the video, it was established
that one of the assailants had a handgun and the other one
had a rifle. A video production manager testified that he
calculated the time between the first gunman entering the
store and the last gunman leaving the store as forty-eight
seconds. He also calculated the time between when the last
gunman exited the store and when the first police officer
entered the store, as four minutes and fifty-five seconds.
were no eyewitnesses to the crimes, but there was an
eyewitness in the neighborhood who heard shots and saw two
figures running from the area of the convenience store. The
eyewitness saw one of the figures running with what appeared
to be a pistol. There was no fingerprint or DNA evidence
linking Alvarez to the crimes. Alvarez did not make any
inculpatory statements to law enforcement.
weeks after the crime, Alvarez's codefendant was
apprehended after a chase. During the chase, the codefendant
was seen throwing a firearm into a lake adjoining an
apartment community. Five weeks after the codefendant's
arrest, the firearm was recovered. A firearm examiner
testified that a projectile recovered from the convenience
store was fired from the handgun recovered from the lake. The
handgun was admitted into evidence. The long gun used during
the crimes was never recovered.
State introduced the testimony of I.M., a federal prisoner,
who testified he met Alvarez in early 2010 (a few months
before the crime) because Alvarez wanted to buy some guns.
The State entered two pictures into evidence, each showing a
gun purchased by Alvarez from I.M., one a handgun and one a
"long weapon." When I.M. was shown the handgun
admitted into evidence, he initially said the handgun did not
look like the handgun in the picture that he sold to Alvarez,
but later clarified that both guns looked the same, except
that the handgun admitted into evidence looked more
"oxidized" than the gun in the picture.
key witness for the State was M.G. She testified that shortly
after 9:00 p.m. on the night of the crimes, she received a
text message from Alvarez to pick him up. In the past, she
had frequently driven Alvarez places in exchange for gas
money. She picked up Alvarez at the same apartment community
where the handgun was thrown into the lake two weeks later,
and drove him to another nearby apartment complex to pick up
Alvarez's codefendant. As she had frequently seen in the
past, Alvarez was carrying a backpack that night. She then
drove both of them to a community park close to the
convenience store where the crimes occurred. Alvarez and his
codefendant left the car acting "normal." Alvarez
told her he would be back. She sat in the car playing music.
She did not hear any gunshots, but a short time later,
Alvarez and his codefendant came back to the vehicle
"hyped up" and "rushed." She asked the
two what was wrong, but Alvarez told her that everything was
fine and to just go. When she looked at the codefendant in
the rear-view mirror, he had a "bigger gun." She
further testified that Alvarez contacted her the next morning
to meet with her, which she stated was unusual, and when they
met, he told her not to worry and everything was all right.
On cross-examination, when shown pictures of the two guns
I.M. sold to Alvarez, M.G. testified she did not see Alvarez
that night with either gun (no testimony was elicited as to
whether M.G. saw the co-defendant with either gun that
officer testified to using the cellphone records obtained for
Alvarez's phone to determine the cellphone location at
certain times on the night of the crimes, based on cellphone
tower data. He testified that there was information logged
from phone calls at 11:39 p.m. and 11:53 p.m., which was
around the time of the crimes. At 11:39 p.m., an unanswered
outgoing call from Alvarez's cellphone hit a tower near
the convenience store.
was also evidence of text messages between Alvarez and
others. At 11:47 p.m. on the night of the crimes, Alvarez
sent a text message to a friend who lived about a
mile-and-a-half from the convenience store to "open
up" (suggesting Alvarez was seeking shelter after
fleeing). Another exchange involved messages between Alvarez
and a friend living at the apartment complex where the
handgun was recovered. The message from the friend stating:
"Them boys in the back with scubas lurking in the lake
for something, " was sent at the same time that divers
were searching the lake after the ...