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Vassor v. State

Florida Court of Appeals, Fourth District

May 16, 2018


         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Ilona M. Holmes, Judge; L.T. Case No. 11-019972 CF10A.

          Aubrey Webb, Coral Gables, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.

          TAYLOR, J.

         Volvick Vassor appeals his conviction and life sentence for first-degree murder. The state prosecuted appellant for first-degree murder on dual theories of premeditation and felony murder, based on allegations that appellant was a lookout during a residential burglary that resulted in the shooting death of the homeowner, Nelson Heck. We affirm as to all issues raised and write to address appellant's argument that the trial court erred in giving jury instructions on premeditation because there was insufficient evidence to support a premeditation theory for first-degree murder.

         Appellant, along with co-defendants Jaquan Jean-Baptiste and Rivky Tamar, was charged by indictment with first-degree murder for killing Heck. The state alleged that the defendants acted "with a premeditated intent to cause the death of Nelson Heck and/or Nelson Heck's death occurred as a consequence of and while [the defendants] were engaged in the commission, or attempted commission of a burglary . . . ."

         The evidence at trial established the following facts. On the evening of November 15, 2011, the victim's neighbor, James Keefe, was home when he heard sounds like gunshots nearby. He walked outside to his driveway, saw a car drive by, and then noticed the victim's front door wide open with the foyer light on. When Keefe walked over to the victim's house, he saw the victim lying face up in a pool of blood on the floor of the foyer. He contacted the Fort Lauderdale police.

         During their investigation, the police learned that another neighbor had a surveillance system installed outside his residence in an apartment complex less than a quarter mile from the victim's house. The neighbor informed the police that he recorded a video around the time of the incident. The surveillance video showed two cars pull into the complex's parking lot. The video showed two men getting out of one car and entering the other car. At one point, the interior light in one of the cars was illuminated, and the neighbor saw the driver putting on gloves. The two cars then left the area. Less than five minutes later, the video captured the sound of gunshots.

         Officer Erik Good watched the video multiple times, noting the physical characteristics and clothing of one occupant, later identified as appellant, who was wearing Adidas shorts. Officer Good also observed on the video a Ford Taurus or Fusion and a dark-colored, two-door Nissan Altima.

         Officer Good patrolled the area in search of the vehicles and occupants he had seen on the surveillance tape. About ninety minutes after the initial call to police, and about five miles from the victim's house, Officer Good stopped a two-door, black Nissan Altima. The driver, appellant, matched the description of the man wearing Adidas shorts in the video. The officer handcuffed appellant and transported him to the police station.

         At the station, officers took appellant's belongings, including his cellphone, and placed him in an interview room. One officer noticed that someone named "Gator Tom" was repeatedly calling appellant's phone, so the officer wrote down the caller's name and phone number. The phone was returned to appellant before his release from jail, and the police used both video and audio surveillance to monitor the calls he made while he was alone in the interview room.

         The next day, the police located the Ford Taurus. Christopher Zetrenne's sister told the police that her brother had rented the car, which he had cleaned earlier that day. Zetrenne went to the police station, where detectives showed him photos from the surveillance video. Zetrenne admitted that he was the driver of the Ford and that appellant drove the Altima. Zetrenne denied being involved in the burglary and murder and said they were only there to smoke marijuana. The police released him. Zetrenne later pled to accessory after the fact and received probation.

         After obtaining search warrants, the police searched the Ford and the Altima, finding the victim's blood inside both cars. Through cell tower data, the police obtained records showing numerous calls between appellant, Jean-Baptiste, Zetrenne, and "Gator Tom"-later identified as Tamar-on the day before the burglary and homicide. The records further showed that on the day of the burglary and homicide, there were more than forty calls between appellant and Zetrenne, and more than twenty calls between appellant and Tamar. On the ...

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