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Turner v. State

Florida Court of Appeals, First District

June 28, 2019

Robert Jacoby Turner, Appellant,
State of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Duval County. Linda F. McCallum, Judge.

          Andy Thomas, Public Defender, and Victor Holder, Assistant Public Defender, Tallahassee, for Appellant.

          Ashley Moody, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.

          Bilbrey, J.

         Appellant challenges his convictions and sentences for one count of second degree murder and seven counts of attempted second degree murder claiming that the jury verdict was a true inconsistent verdict.[1] See Brown v. State, 959 So.2d 218 (Fla. 2007) (explaining that a true inconsistent verdict occurs where the finding of not guilty on one count negates an element necessary for conviction on another count). We hold that although the jury verdict was factually inconsistent, it does not amount to a true inconsistent verdict and therefore affirm.

         Appellant was charged with a drive-by shooting based on his firing multiple shots from a handgun out of the passenger window of an automobile at a group assembled outside a convenience store. As a result of the shooting Keshawn Rankin was killed, and another victim was injured. At trial, the driver of the automobile and the other two passengers all testified that Appellant fired at the group from the automobile. Appellant's defense was that one of the other passengers was responsible for the shooting. Other than testimony regarding Appellant firing the handgun, there was no testimony of Appellant committing any other "act imminently dangerous to another, and evincing a depraved mind" so as to support second degree murder or attempted second degree murder. See §§ 782.04(2) & 777.04, Fla. Stat. (2016). There was also no testimony to support Appellant's guilt as a principal to the crimes rather than the actual perpetrator, and the jury was not instructed that Appellant could be found guilty as a principal. See § 777.011, Fla. Stat. (2016).

         The jury found the Appellant guilty of the second degree murder of Mr. Rankin and of attempted second degree murder of the seven other victims. The jury was given a detailed verdict form and asked to find on each of these counts whether Appellant discharged or possessed a firearm during the commission of the offenses. For the murder and the attempted murder counts the jury found that Appellant "did not actually possess a firearm during the commission of the offense."

         After the jury returned the verdict, Appellant filed a motion for arrest of judgment and for a judgment of acquittal claiming a true inconsistent verdict. The trial court denied the motions. Appellant was sentenced to life imprisonment for the murder of Mr. Rankin and 30 years for each of the seven counts of attempted second degree murder to run concurrent to the murder count. On appeal, Appellant argues the trial court committed error by not granting the motions claiming a true inconsistent verdict.

         Clearly the verdict was factually inconsistent because the jury had no evidence to support a finding of guilt against Appellant unless Appellant possessed and discharged a handgun at the assembled group. However, as the Florida Supreme Court has stated, a true inconsistent verdict requires more than just factual or logical inconsistency:

As a general rule, inconsistent jury verdicts are permitted in Florida. Eaton v. State, 438 So.2d 822 (Fla. 1983); Goodwin v. State, 157 Fla. 751, 26 So.2d 898 (1946); Gonzalez v. State, 440 So.2d 514 (Fla. 4th DCA), review dismissed, 444 So.2d 417 (Fla. 1983). Inconsistent verdicts are allowed because jury verdicts can be the result of lenity and therefore do not always speak to the guilt or innocence of the defendant. See Eaton, 438 So.2d at 823. Moreover, defendants have adequate procedural and constitutional protections to ensure that their convictions are not erroneous, whereas the State does not have the benefit of any reciprocal protections. Cf. Potts v. State, 430 So.2d 900 (Fla. 1982) (relied on similar reasoning to hold that defendant tried separately from co-conspirator is not entitled to raise conviction of co-conspirator for a lesser offense as a bar to defendant's conviction for a greater offense).
This Court has recognized only one exception to the general rule allowing inconsistent verdicts. This exception, referred to as the "true" inconsistent verdict exception, comes into play when verdicts against one defendant on legally interlocking charges are truly inconsistent. As Justice Anstead explained when writing for the Fourth District Court of Appeal in Gonzalez, true inconsistent verdicts are "those in which an acquittal on one count negates a necessary element for conviction on another count." 440 So.2d at 515. For example, this Court has required consistent verdicts when
the underlying felony was a part of the crime charged-without the underlying felony the charge could not stand. The jury is, in all cases, required to return consistent verdicts as to the guilt of an individual on interlocking charges.
Eaton, 438 So.2d at 823; see Mahaun v. State, 377 So.2d 1158 (Fla. 1979) (verdict of guilty as to felony-murder set aside where jury failed to find defendant guilty of the underlying felony); Redondo v. State, 403 So.2d 954 (Fla. 1981) (defendant could not be convicted of unlawful possession of a firearm during a commission of felony where the jury failed to find the defendant guilty of any felony). An exception to the general rule is warranted when the verdicts against a single defendant are truly inconsistent ...

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