Francois v. State

65 So. 3d 632, 2011 Fla. App. LEXIS 11757, 2011 WL 3109957
CourtDistrict Court of Appeal of Florida
DecidedJuly 27, 2011
DocketNo. 4D09-5123
StatusPublished
Cited by1 cases

This text of 65 So. 3d 632 (Francois 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
Francois v. State, 65 So. 3d 632, 2011 Fla. App. LEXIS 11757, 2011 WL 3109957 (Fla. Ct. App. 2011).

Opinion

TAYLOR, J.

Defendant Onelson J. Francois was tried by a jury and found guilty of burglary of a structure while armed -with a shotgun and attempted robbery with a firearm that he actually possessed and discharged. He raises two issues on appeal: (1) the trial court erred in denying his motion for judgment of acquittal because a witness’s testimony concerning the defendant’s admission was too vague, and (2) the trial court erred in summarily denying the jury’s request for a transcript of testimony without advising the jury that it could have the testimony read back. We reverse only as to the issue concerning testimony read back.

Neam Duffy, the manager of a check cashing store on Sunrise Boulevard in Bro-ward County, Florida, testified that on July 12, 2007, he had closed the store at 9 p.m. and was balancing the vault and counting cash in the “cage” behind an armored, locked door and bulletproof glass when he heard a loud noise. He saw a man jump through the front window and shoot at the door. Duffy heard breaking glass, two gun shots, and banging on the door. He hit the panic button and called 911. He saw a black male, about 5'9" and 190 pounds, holding a shotgun, but because it was dark he could not see his face. A surveillance video of the incident was introduced into evidence at trial.

Cornel Dorsey, who lived on the street next to the check cashing store, was outside with his family. He saw an unfamiliar truck parked in his yard and heard shots fired. Because it was July, he thought they were fireworks. About five minutes later, he saw a black male jump over his fence and hop in the truck. The truck was a white Chevrolet. Dorsey wrote down the tag number and observed that the plate was from either Ohio or Idaho. The tag number was traced to a truck that had formerly belonged to Nathan McKinney. McKinney had recently sold the truck to his co-worker, Michael Zoyes. The truck was used at their place of employment, where the defendant also worked.

McKinney testified that on July 12, 2007, he worked for McKinney Signs and drove a 1993 white Chevrolet pickup truck with Ohio tags. He sold the truck to Mike Zoyes, the sales manager of McKinney Signs. The truck was used for the business and anyone at work who needed to [634]*634use it would drive it. McKinney identified State’s Exhibit 2, a picture of the truck Dorsey had described.

McKinney testified that the defendant rode with him a lot but he did not know whether the defendant would take the truck home. Zoyes, however, confirmed that both he and the defendant sometimes took the truck home at night. McKinney testified that some time after July 12, 2007, he and the defendant were riding together when the defendant told him about an incident with a shotgun. The defendant said that he had tried to break into a check cashing store on Sunrise Boulevard. McKinney testified as follows:

McKINNEY: On that date exactly we were just riding along nonchalantly. He talked about an incident at hand with a shotgun. He did not go into details. He was upset. My first question was, did you use my truck? He said no. I said okay.
STATE: What did he tell you? He mentioned a shotgun?
McKINNEY: He said getting in a front door with a 12 gauge. I said I don’t remember the details on that. It is over two years now.
STATE: Anything that would refresh your recollection?
McKINNEY: Refresh? Other than the statement at the time that my memory was fresh.
STATE: July 24, 2007, page 305. I want you to read that top portion. When you are done look up at me.
McKINNEY: Oh, yeah. He apparently used a spark plug to try to break the window and shot up with a 12 gauge. He was upset when he couldn’t get in and took off.
STATE: Did he tell you what kind of business?
McKINNEY: Not at that time. I think I asked him later. I think he said a check cashing store. I was curious what kind of door he couldn’t get in.
STATE: What did he tell you he did with the shotgun?
McKINNEY: He said he threw it into the bushes when he took off. I’m going by my statement at the time.

When asked if the defendant told him where the check cashing store was located, McKinney said he thought it was the one on Sunrise Boulevard. On cross-examination, McKinney explained that his conversation with the defendant was short. He said, “On the initial conversation, I think I pretty much dropped it once he said he did not use my truck. Once he said my truck was not involved, I had nothing to do with it.”

The defendant was interviewed by the police. He admitted that he drove the truck on the night of the burglary but denied committing the crimes. He said he spent the night at his girlfriend’s house. Police who responded to the scene found a shotgun — a JC Higgins Mile 20, 12 gauge Sears Roebuck shotgun — and a bookbag between the two fences. The gun was loaded. At the check cashing store, police found a shattered window, broken glass, fired shots, a gun cartridge, a spent shell casing, and a live round. The officers did not remember finding a spark plug at the scene. No DNA evidence or fingerprints linked the defendant to the crime scene. The defendant was arrested on the charges over a year later.

After the state rested, the defendant moved for a judgment of acquittal. The motion was denied. The defendant took the stand and denied being involved in the check cashing store burglary and attempted robbery. He said that he never made any admissions to Nathan McKinney.

[635]*635During deliberations, the jury requested to see McKinney’s testimony:

COURT: Can we see the testimonial transcripts of Nathan McKinney? The answer is no. You cannot see the transcripts of Nathan McKinney.
Do you agree, State.
STATE: Cannot see them, but read it back.
COURT: Do you agree, Mr. Vargas?
DEFENSE: I agree.
COURT: The answer is no. Bring them in.
(Thereupon, Jury entered at 3:50 p.m.)
COURT: Let the record reflect that the jury is within the courtroom. Be seated.
Members of the Jury, you have asked the following: Can we see the testimony and transcripts of Nathan McKinney?
I am not able to grant your request. Please continue with your deliberations.

In his first point on appeal, the defendant argues that his alleged confession to Nathan McKinney was too vague to support his conviction.1 He points out that this was the only evidence in the case that connected him to the crimes.

“The trial court determines the admissibility of a confession with regard to whether it was given voluntarily. However, it normally is up to the trier of fact to determine the credibility of the confession, as well as the credit to be given to the witnesses who testify regarding the confession.” Williams v. State, 774 So.2d 931, 933 (Fla. 5th DCA 2001) (citing 24 Fla. Jur. 2d § 483).

In Williams,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hazuri v. State
91 So. 3d 836 (Supreme Court of Florida, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
65 So. 3d 632, 2011 Fla. App. LEXIS 11757, 2011 WL 3109957, Counsel Stack Legal Research, https://law.counselstack.com/opinion/francois-v-state-fladistctapp-2011.