Aumuller v. State

944 So. 2d 1137, 2006 WL 3524033
CourtDistrict Court of Appeal of Florida
DecidedDecember 8, 2006
Docket2D05-2097
StatusPublished
Cited by4 cases

This text of 944 So. 2d 1137 (Aumuller v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aumuller v. State, 944 So. 2d 1137, 2006 WL 3524033 (Fla. Ct. App. 2006).

Opinion

944 So.2d 1137 (2006)

Michael AUMULLER, Appellant,
v.
STATE of Florida, Appellee.

No. 2D05-2097.

District Court of Appeal of Florida, Second District.

December 8, 2006.
Rehearing Denied January 8, 2007.

*1138 James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.

FULMER, Chief Judge.

Michael Aumuller challenges his conviction for first-degree murder by drug distribution in violation of section 782.04(1)(a)(3), Florida Statutes (2001).[1] He raises two issues on appeal. We reject the first issue because the trial court properly denied Aumuller's request for a jury instruction regarding a break in the chain of causation, and we write to explain our reasoning. We reject without further discussion the second issue concerning comments by a State witness and the prosecutor because we conclude that the comments complained of do not rise to a level of prejudice that merits a new trial.

The indictment charged that Aumuller "did unlawfully distribute . . . heroin, which was the proximate cause of the death of Ja[ir]on Nevius." At trial, the State presented the testimony of Ryan Connaughton, Jason Aykroyd, and Jason Howlett, three friends of the deceased, each of whom recounted the events on the day that Nevius died.

According to Connaughton, he met Nevius in the early afternoon on March 9, 2002, and began "partying." They used marijuana and cocaine. Nevius also drank alcohol and used Valium. Nevius came up with the idea of getting heroin. They ran into Aykroyd, who joined them at Nevius's apartment. They discussed their desire to obtain heroin. Aykroyd used his cell phone to call someone, and then the three went in Aykroyd's car to a gas station to get the heroin. By this time, it was dark outside. Aumuller and a woman arrived in a red sports car and both came to Aykroyd's car to talk to Aykroyd and deliver the heroin. Aumuller told them the heroin "was fire," which Connaughton understood to mean that it was very potent. Nevius gave the money to Aykroyd. Aykroyd and Aumuller exchanged the money for the *1139 drugs. Aykroyd and Aumuller went into the store to get change and buy water. Aumuller and the woman then left in their car.

Aykroyd and Nevius then shot up the heroin in the car. Nevius fell asleep. Connaughton drove them back to Nevius's apartment. Connaughton and Aykroyd left Nevius sleeping in the car and went into the apartment where they shot up. About twenty minutes later, they went out to check on Nevius and found he was not breathing and had no pulse. They brought him into the apartment and tried to perform CPR. Nevius vomited while they were trying to revive him, but he was otherwise nonresponsive. Howlett arrived while they were trying to resuscitate Nevius, but Howlett did not stay long. Aykroyd and Connaughton left Nevius's apartment to drive to Connaughton's house and, after about fifteen minutes, Aykroyd called the paramedics from a pay phone.

Police officers contacted Connaughton after the 911 call occurred. Initially he lied and told police that they had found Nevius dead in his apartment. Connaughton tried to cover up his involvement because he was on probation at that time. He later confessed and helped officers locate the needles, which had been thrown in the trash at Nevius's house.

Aykroyd's testimony differed from that of Connaughton as to the details of the drug transaction. Aykroyd testified that he knew Aumuller for about a year prior to March 9, 2002. They had met working at a telemarketing company. Aumuller drove a red Nissan 200SX car and had a girlfriend named Heather Crouse. Aykroyd met with Nevius and Connaughton at Nevius's house in the afternoon on March 9. They decided to get some heroin. Aykroyd used his cell phone to page Aumuller, and Aumuller returned the call. Aykroyd conveyed to Aumuller that he wanted to buy a half gram of heroin. Aumuller indicated that he was going to Tampa to "re-up," which Aykroyd understood to mean that he planned to get more heroin.

Aykroyd paged Aumuller again a few hours later, and this time Crouse called back. Aykroyd and Crouse set a location, a gas station, where the drug transaction would occur. He also asked Crouse to sell him some Ecstasy. Aykroyd, Connaughton, and Nevius waited at the gas station for about an hour before Crouse and Aumuller arrived in Aumuller's red Nissan. Crouse was driving. She parked next to Aykroyd so that Aumuller, who was sitting in the passenger seat of the Nissan, could talk to Aykroyd, who was sitting in his driver's seat. They said hello to each other from their vehicles. Crouse got out of the car and went up to Aykroyd's window to exchange the money for the drugs. Nevius gave the money to Aykroyd because Nevius was buying the drugs, and Aykroyd gave the money to Crouse. Aumuller never got out of his car. Crouse went into the store to get change. Crouse and Aumuller drove away.

Aykroyd handed the heroin to Nevius, who proceeded to make "his fix" and hand the bag back to Aykroyd. Aykroyd noticed that Nevius took a lot more than what would be normal. They both put the heroin in a spoon, mixed it up, put it in a syringe, and shot it into their arms. Aykroyd blacked out in the driver's seat. Connaughton drove them to Nevius's house. Nevius fell asleep on the way. Aykroyd and Connaughton left Nevius sleeping in the car and went into the house to shoot up more heroin.

An unknown time later, while they were under the influence of heroin, Aykroyd and Connaughton went out and found Nevius slouched over, lifeless. They brought *1140 Nevius into the house, laid him on the floor, and attempted to resuscitate him. After a while, Nevius started to vomit, which they thought was a sign he was reviving. They sat him up while he vomited for a few minutes. They tried to perform CPR again, but Nevius showed no sign of life. Jason Howlett came in briefly as they were trying to revive Nevius. After Howlett left, Aykroyd and Connaughton left together to go to Connaughton's home in Dunedin. They believed that Nevius was dead at that point and they left him at the house without calling for assistance. From Connaughton's house, Aykroyd walked to a pay phone and placed a 911 call. Then Aykroyd went home. The next day, Aykroyd paged Aumuller, and Crouse called back. Aykroyd told Crouse that Nevius had overdosed and died.

Jason Howlett testified that on March 9 he spent the day with other friends. Early the next morning, at about 2 a.m., he stopped by Nevius's house. He saw Aykroyd's and Connaughton's cars out front. He knocked on the door and waited for someone to answer. When he went inside, he saw Nevius on the floor. Howlett thought that Aykroyd, Connaughton, and Nevius were playing a joke on him. He then realized that Aykroyd was doing CPR and the situation was serious. Nevius was pale and cold and had no pulse. Howlett realized that Nevius was dead. Howlett told the others to call the police and paramedics. He asked them to call him to let him know what happened. He then left the house and drove around. Between thirty and forty-five minutes later, Connaughton called Howlett. Howlett met Aykroyd and Connaughton at Connaughton's house. Howlett forced the other two to walk to the pay phone and make the 911 call.

Officer Quinones testified that he was sent to investigate the overdose at 3:21 a.m. Upon arriving at the house, he found a white male slouched over and nonresponsive.

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Cite This Page — Counsel Stack

Bluebook (online)
944 So. 2d 1137, 2006 WL 3524033, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aumuller-v-state-fladistctapp-2006.