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IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

ERIC BAZEMORE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 2D10-2254

Opinion filed December 30, 2011.

Appeal from the Circuit Court for Hillsborough County; Daniel H. Sleet, Judge.

James Marion Moorman, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellee.

ALTENBERND, Judge.

Eric Bazemore appeals his judgments and sentences arising from his involvement in a murder and an attempted murder. We reverse his judgment for attempted second-degree murder and remand that offense for a new trial. We affirm his judgments for accessory after the fact to first-degree murder and accessory after the

fact to shooting into a vehicle. Because the reversal might affect Mr. Bazemore’s sentences on the two judgments that we affirm, we reverse all of the sentences.

In September 2009, Mr. Bazemore drove his employer, William Privett, to the home of Eric Brewer. Shirley Sexton, Mr. Privett’s former girlfriend, was a friend of Mr. Brewer’s wife and was living temporarily at the Brewers’ home. Mr. Bazemore pulled into the driveway behind a car occupied by Mr. Brewer and Ms. Sexton. Mr. Privett got out of the car, pulled out a handgun, and fired multiple shots at the two victims. Mr. Brewer died, and Ms. Sexton survived. After the shooting, Mr. Bazemore drove Mr. Privett from the scene.

Mr. Privett contacted a lawyer shortly after this shooting and arranged to turn himself in to law enforcement. The investigation then led to Mr. Bazemore. He too had contacted a lawyer who initially told him to “lay low.” Thereafter, he was interviewed by a detective. After several interviews, Mr. Bazemore finally provided a location that allowed law enforcement to find the discarded murder weapon in a ditch alongside a road.

This case was presented to a grand jury, and the grand jury returned an indictment against both men. It charged Mr. Bazemore in count I as a principal in the first-degree murder of Mr. Brewer and in count IV as an accessory after the fact to that same murder. It further charged him in count II as a principal in the attempted first-degree murder of Ms. Sexton and in count V as an accessory after the fact to that same attempted first-degree murder. Finally, in count VI, it charged him as an accessory after the fact to shooting into a vehicle.1

1Count III dealt exclusively with Mr. Privett.

The alternative offenses described in the indictment are based in part on Mr. Bazemore’s theory of defense. The primary issue at trial was whether Mr. Bazemore had enough knowledge and involvement in these events to be a principal to the offenses of murder and attempted murder. The defense theory was that Mr. Bazemore had no idea that Mr. Privett planned to shoot his victims and that Mr. Bazemore fled the scene with Mr. Privett because he was afraid of Mr. Privett.

The State established a prima facie case of all five counts against Mr. Bazemore. Before the case was submitted to the jury, Mr. Bazemore asked for an instruction explaining to the jury that the theory of principal to a murder or attempted murder was mutually exclusive of the theory of accessory after the fact to these offenses. The trial court refused to give this instruction.

The jury found Mr. Bazemore not guilty in count I for the first-degree murder of Mr. Brewer, but found him guilty in count IV as an accessory after the fact to this first-degree murder. It also found him guilty in count VI as an accessory after the fact to the shooting into the vehicle. We affirm the judgments based on the two guilty verdicts.

In count II, the jury found Mr. Bazemore guilty of the lesser-included offense of attempted second-degree murder of Ms. Sexton. It also found him guilty in count V as an accessory after the fact to the same attempted second-degree murder. Thereafter, the trial court decided to sentence Mr. Bazemore only on the greater offense in count II. It declined to enter judgment or sentence on the related accessory charge in count V, describing that offense as “dismissed.”

Mr. Bazemore has raised six issues and we will address three of them. First, the trial judge gave an instruction on attempted manslaughter that is virtually identical to the erroneous instruction in Houston v. State, 36 Fla. L. Weekly D1772 (Fla. 2d DCA Aug. 12, 2011), appeal dismissed, State v. Houston, No. SC11-1836, 2011 WL 4482178 (Fla. Sept. 23, 2011).2 Because the jury convicted Mr. Bazemore of attempted second-degree murder, this erroneous instruction on the next lesser offense requires that the conviction on this count be reversed and this count be remanded to the trial court for a new trial. We certify that our holding here, as in Houston, conflicts with the Fourth District’s holding in Williams v. State, 40 So. 3d 72 (Fla. 4th DCA 2010), cert. granted, 64 So. 3d 1262 (Fla. 2011).

Even if the attempted manslaughter instruction were not erroneous, we would still be required to reverse this conviction and remand for a new trial as to the attempted murder of Ms. Sexton. It is well established that a defendant cannot be convicted both as a principal to an offense and as an accessory after the fact for the same offense. Staten v. State, 519 So. 2d 622, 623 (Fla. 1988); Bowen v. State, 791 So. 2d 44, 50 (Fla. 2d DCA 2001). Even though there is no standard instruction for this circumstance, Mr. Bazemore was entitled to an instruction explaining that the jury could convict him of only one of these offenses.

There may be occasions when the trial court could select the greater offense for sentencing and omit sentencing on the lesser offense as occurred here. But in this case, the jury found Mr. Bazemore not guilty as a principal in the murder of Mr.

2See also Brown v. State, 36 Fla. L. Weekly D2450 (Fla. 2d DCA Nov. 9, 2011); Brooks v. State, 36 Fla. L. Weekly D2289 (Fla. 2d DCA Oct. 19, 2011); Mueller v. State, 36 Fla. L. Weekly D2063 (Fla. 2d DCA Sept. 16, 2011); but see Banek v. State, 36 Fla. L. Weekly D2385 (Fla. 2d DCA Nov. 2, 2011).

Brewer. Notably, the verdict form did not identify the victims by name when describing each count. In examining this verdict, we cannot declare beyond a reasonable doubt that the jury’s inconsistent verdict is harmless and that the jury would have selected the greater offense over the lesser offense if forced to choose. See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).3

Finally, during the trial, the court allowed the prosecutor to admit portions of Mr. Bazemore’s statement to the detective when he was interviewed. Over objection, the court allowed the State to include portions of the interview in which Mr. Bazemore explained that he had contacted an attorney and had been advised to “lay low.” The trial court was apparently persuaded by the State’s argument that these statements were evidence of consciousness of guilt.

The Fourth District has held that the state cannot argue that a defendant’s request for a lawyer prior to arrest is evidence of consciousness of guilt. Dendy v. State, 896 So. 2d 800, 804 (Fla. 4th DCA 2005). Given all of the reasons to avoid the presentation of attorney-client discussions to the jury and in light of the questionable probative value of this “evidence,” the State primarily argues that this error was harmless beyond a reasonable doubt. As to the judgments that we affirm, we agree with that assessment. As to the judgment that we are reversing, we need not reach this issue. However, if we were not reversing the attempted second-degree murder judgment on other grounds, it would be a very close question as to whether this error

3We have considered whether the errors requiring the reversal of the conviction for the attempted second-degree murder of Ms. Sexton could be cured by convicting Mr. Bazemore on the jury verdict for accessory after the fact to this offense. Given that this count was “dismissed,” we are unconvinced that we could require this remedy. We leave this issue for the parties to consider on remand.

required reversal. Suffice it to say that this evidence should not be reintroduced at any subsequent trial in this case.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and VILLANTI, JJ., Concur.

Courtesy of David Edelstein

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IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

STATE OF FLORIDA,

Appellant,

v.

SHARON LAVERNE McCULLOUGH,

Appellee.

Case No. 2D10-3180

Opinion filed December 30, 2011.

Appeal from the Circuit Court for Manatee County; Diana L. Moreland, Judge.

Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellant.

James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellee.

KHOUZAM, Judge.

The State appeals from the trial court’s order granting Sharon Laverne McCullough’s motion to suppress evidence seized following her arrest. Because the search of McCullough’s car was illegal under the United States Supreme Court’s holding in Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710 (2009), we affirm.

McCullough was arrested during a “warrant round-up.” The arresting officer executed the warrant after McCullough pulled into her private driveway. She had already exited her vehicle and locked her door when the officer approached her. After McCullough locked the vehicle door, the officer effectuated the arrest under the outstanding warrant by instructing her to put her hands behind her back for handcuffing. Before being handcuffed, McCullough threw her vehicle keys to her son, who entered the residence at which the car was parked. McCullough was then escorted into the patrol car “without incident.”

After the officer placed McCullough in his car, he again approached her vehicle and confirmed that it was locked. No evidence was presented that the officer could see any contraband or evidence of any crime inside the car. The officer then went to the door of the home and instructed McCullough’s son to give him the keys. After McCullough’s son complied with this instruction, the officer returned to the vehicle, unlocked it using McCullough’s key, and conducted a search inclusive of McCullough’s purse that was inside the car. The search revealed cash, marijuana, and cocaine inside McCullough’s purse.

McCullough filed a motion to suppress these items as well as any statements made, arguing that the officer did not have probable cause to search her car. At the hearing, no facts were presented regarding any underlying basis for the issuance of the warrant and the warrant itself was not even admitted into evidence. The only evidence presented was that the warrant had been issued four to five months prior to McCullough’s arrest for an alleged sale of cocaine. The trial court granted McCullough’s motion, finding the search of McCullough’s vehicle to be in violation of

Gant because the lack of “independent corroborative evidence relating back to the underlying substantive offense” rendered it unreasonable to believe that her vehicle contained evidence of an offense allegedly committed months prior.

The State argues on appeal that because the offense underlying the outstanding arrest warrant was drug-related, it necessarily follows that a search of McCullough’s vehicle incident to that arrest was per se reasonable and no further analysis is appropriate. In support of this argument, the State points to Brown v. State, 24 So. 3d 671, 677 (Fla. 5th DCA 2009), which “specifically reject[ed] Appellant’s argument that the search was not justified because there was no evidence, apart from the offense of arrest, connecting the crime to the vehicle.” But because Brown is factually distinguishable and its reasoning appears to be contrary to Gant, we decline to follow it.1

Gant holds that “[p]olice may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” 129 S.Ct. at 1723. Because it is undisputed that McCullough was secured in handcuffs in the arresting officer’s patrol car when her car was searched, this case concerns only the second prong of Gant’s holding. Accordingly, the search can withstand constitutional scrutiny only if it was reasonable to believe McCullough’s vehicle contained evidence of the offense underlying her arrest.

1We note that this is not the first court to disagree with the reasoning employed in Brown. See U.S. v. Reagan, 713 F. Supp. 2d 724, 732 (E.D. Tenn. 2010) (specifically “disagree[ing] with the Brown interpretation of Gant”).

The Brown court interpreted Gant’s second prong to mean that the nature of the charge for which the defendant is arrested is “determinative of whether there exists a reasonable basis to search for evidence, not whether there is some independent evidence that gives rise to a belief that the particular vehicle contains evidence.” 24 So. 3d at 678. Brown thus establishes two categories of crimes: those for which no evidence can be found within the vehicle, and those for which it is always reasonable to believe evidence may be found within the vehicle. Unfortunately, this analysis necessarily disregards the circumstances of the arrest and any other facts making it unreasonable to believe that the vehicle contains evidence of the arrest, so long as the offense itself is a type that “might yield physical evidence.” Id. at 681. Therefore, under Brown, the only fact relevant to the constitutionality of a search of a vehicle recently occupied by a now-secured arrestee is the charge itself.

If this reasoning is accurate, then an arrest warrant for a single sale of perishable contraband would authorize a search of the arrestee’s vehicle at any time, whether days, months, or even years later, despite the fact that it may not be reasonable to believe any evidence of the original illegal act remained. We do not believe this is what the Supreme Court envisioned when it explicitly conditioned the search of a secured arrestee’s vehicle on a reasonable belief that evidence of the underlying offense exists inside.

McCullough’s warrant was issued four to five months prior to her arrest, and the record is devoid of any evidence whatsoever suggesting that the sale of cocaine she allegedly committed months before her arrest was still taking place or that the car was involved in that sale. Further, from his lawful standpoint outside the vehicle,

the officer observed no contraband, weapons, or any other evidence which would support a reasonable belief that evidence from an offense committed at least four months prior—at an unknown location—would exist inside McCullough’s vehicle at the time of her arrest.

This lack of any information, beyond the mere existence of a warrant issued months prior, also distinguishes these facts from Brown, where the officer immediately observed a woman’s wallet on the seat of the car that the defendant, a male with two outstanding warrants for theft, had just been driving.2 If, as in Brown, the officer who arrested McCullough had observed something during the encounter making it reasonable to believe that evidence of the offense of arrest might be found in the vehicle, the outcome would be different. But because no such evidence was presented, the search was unreasonable under Gant.

The order granting McCullough’s motion to suppress is affirmed, and to the extent the reasoning of this opinion conflicts with Brown, we certify conflict. Affirmed.

WHATLEY and BLACK, JJ., Concur.

2Notably, the Brown court did not rely on this fact in reaching its conclusion, instead focusing on the “nature of the charge” analysis described above.

Courtesy of David Edelstein

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IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

STATE OF FLORIDA,

Appellant,

v.

ALPHONSE OLANDO GALLO,

Appellee.

Case No. 2D10-5394

Opinion filed December 30, 2011.

Appeal from the Circuit Court for Sarasota County; Stephen L. Dakan, Senior Judge, and Becky A. Titus, Judge.

Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellant.

Christopher E. Cosden of The Wilbur Smith Law Firm, Fort Myers, for Appellee.

CASANUEVA, Judge.

The State appeals the trial court’s determination that Alphonse Olando Gallo was entitled to immunity from prosecution for the second-degree murder of Patrick Barbour. We affirm.

Mr. Barbour’s unfortunate death resulted from events reminiscent of the “Shootout at the OK Corral.”1 At around 2:30 in the morning, Mr. Gallo and Mr. Barbour confronted each other outside of a busy night club in the Newtown area of Sarasota. They argued regarding a debt that Mr. Barbour owed Mr. Gallo. As tempers flared the argument became more physical. Eventually the minor tussling stopped and more serious threats began. The situation reached a climax, breaking out into a gunfight between at least four men in the middle of the street. Men were ducking behind cars and firing over their shoulders as they ran for cover. An officer nearby heard several of the shots and arrived at the scene quickly. When he arrived, he found Mr. Barbour on the ground in the middle of the street suffering from multiple gunshot wounds. The officer ran back to his car to collect medical equipment, but a large, hostile crowd surrounded Mr. Barbour and prevented the officer from returning to render aid. Mr. Barbour succumbed to his injuries. By the time law enforcement could secure the area, there was no sign of any of the firearms. However, law enforcement discovered twenty-six shell casings of four different types in the vicinity.

Charged with the second-degree murder of Mr. Barbour, Mr. Gallo filed a motion seeking immunity from prosecution pursuant to section 776.032, Florida Statutes (2009), commonly known as the “Stand Your Ground” law. The legislature passed the law that created this section because it determined “that it is proper for law-abiding people to protect themselves, their families, and others from intruders and attackers without fear of prosecution or civil action for acting in defense of themselves and

1This Day in History; Shootout at the OK Corral, HISTORY.COM, http://www.history.com/this-day-in-history/shootout-at-the-ok-corral (last visited Nov. 30, 2011).

others.” Ch. 05-27, at 200, Laws of Fla. Section 776.032 provides that, in certain circumstances, a person may use deadly force to stand his ground against an attacker and be free from the fear of prosecution. The statute effectively “grants defendants a substantive right to assert immunity from prosecution and to avoid being subjected to a trial.” Dennis v. State, 51 So. 3d 456, 462 (Fla. 2010).

In this case the trial judge held an evidentiary hearing, made determinations of credibility, weighed the numerous pieces of conflicting evidence, and set forth extensive factual findings in a nine-page written order. Based upon the preponderance of the evidence,2 the trial judge ruled that Mr. Gallo was immune from prosecution because he had used deadly force in the manner statutorily authorized by section 776.032. We find no error in the trial court’s procedures, and its factual findings were supported by substantial, competent evidence.

The legislature’s enactment of section 776.032 placed the burden of weighing the evidence in “Stand Your Ground” cases squarely upon the trial judge’s shoulders. In this case, that burden required the trial judge to make order out of the chaos that occurred in Sarasota on one fateful night in 2010. The trial judge performed that duty without legal error. Accordingly, we affirm.

ALTENBERND and DAVIS, JJ., Concur.

2This court has previously held that this is the appropriate standard of proof for “Stand Your Ground” motions. See Montanez v. State, 24 So. 3d 799, 802 (Fla. 2d DCA 2010); Horn v. State, 17 So. 3d 836, 839 (Fla. 2d DCA 2009); see also Peterson v. State, 983 So. 2d 27, 28 (Fla. 1st DCA 2008).

Courtesy of David Edelstein

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