Gahley v. State

567 So. 2d 456, 1990 WL 126326
CourtDistrict Court of Appeal of Florida
DecidedAugust 30, 1990
Docket89-980
StatusPublished
Cited by22 cases

This text of 567 So. 2d 456 (Gahley 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
Gahley v. State, 567 So. 2d 456, 1990 WL 126326 (Fla. Ct. App. 1990).

Opinion

567 So.2d 456 (1990)

Michael Paul GAHLEY, Appellant,
v.
STATE of Florida, Appellee.

No. 89-980.

District Court of Appeal of Florida, First District.

August 30, 1990.
Rehearing Denied September 27, 1990.

*457 Michael E. Allen, Public Defender, and Kathleen Stover, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Carolyn J. Mosley, Asst. Atty. Gen., Tallahassee, for appellee.

JOANOS, Judge.

Appellant Michael Paul Gahley appeals his conviction after a jury found him guilty of unarmed robbery. The issues presented concern (1) the denial of a requested jury instruction on the defense of duress, (2) a modified Allen jury instruction, and (3) a scrivener's error in the written judgment and sentence. We affirm with regard to issues one and two, and reverse as to issue three.

Appellant was sixteen years old when the offense at issue was committed. On August 22, 1988, appellant was charged with robbery while in possession of a firearm, contrary to sections 812.13 and 775.087(2), Florida Statutes. Pursuant to an order issued September 21, 1988, he was prosecuted as an adult.

The evidence at trial established that the robbery occurred at 9:00 p.m. in the parking lot of a Gainesville apartment complex. The victim, a resident of the apartment complex, observed no other persons in the area when he parked his car underneath a light. However, as he stepped out of his car, he saw a black male and a white male walking toward him. The black male asked the victim for a light, and then pulled a gun and assumed a crouching stance, aiming the gun at the victim. The victim testified that appellant, the white male in this scenario, stood diagonally behind the black male. The victim hesitated briefly when the black male ordered him to "give it up," whereupon the black male struck the victim twice in the face. As the victim fell to the ground, the black male ordered appellant to get his [the victim's] wallet. Appellant grabbed the wallet, then he and the black male ran past a building and climbed over the fence which encircled the complex.

Over objection, the victim testified that he observed nothing that led him to believe that appellant was being forced or coerced to take part in the robbery, or that appellant was surprised by the events which transpired. According to the victim, the black male seemed very nervous, "compared to the white guy."

The investigator who took appellant's statement testified that appellant told him he went to the apartment complex with a black male named Maurice, ostensibly to visit Maurice's girl friend. Appellant told the investigator that he did not know Maurice was going to commit a robbery, but he did know Maurice had a gun.[1] Appellant said nothing to the investigator about being forced or threatened by Maurice to participate in the robbery. Under appellant's version of the events, he accompanied Maurice to the apartment complex to visit some girls. As they walked, Maurice took cocaine hits from a ring on his finger, then began "to sweat a lot, like he was hyped up or something." Appellant said that he was stunned and intimidated when Maurice pulled the gun, and when he struck the victim. Appellant further testified that he had not seen the gun before Maurice aimed it at the victim, and that he had not discussed a gun or a robbery with Maurice. In appellant's account, Maurice said, "Give it up, Cracker," before striking the victim, and he grabbed the victim's wallet from appellant's hand as they ran around the building and toward the fence.

*458 During cross examination, appellant again denied knowing that Maurice had a gun the day of the robbery. Over objection, the prosecutor was permitted to ask appellant about a telephone call he made to the victim. Appellant explained that he called the victim from the jail to apologize, expressly denying that he called the victim in an effort to get his bail reduced.

On rebuttal, the victim testified that he believed the primary reason appellant called was to enlist his aid in obtaining a reduction in bail. According to the victim, appellant apologized, saying he did not know Maurice was going to hit him with the gun. In addition, the victim testified appellant did not deny knowing that Maurice intended to rob him, and did not say that he was frightened of Maurice in any way. As to appellant's knowledge of the presence of the gun, the victim testified thusly:

I talked to him for about ten minutes and he did describe or talk to me about the incident and about how they picked the gun up on the way over, that they were waiting around in the apartment complex.
Q. He told you that they picked the gun up on the way over?
A. Yes.
Q. Did he tell you where it came from.
A. No, he didn't tell me the person's name. He did tell me the name of the black person. He said it was Maurice, a school-time friend of his, that they grew up together and he knew him by street names. I said, "Maurice? What's his last name?" He said, "I just know him by Maurice. That's his street name."

During the jury instruction colloquy, defense counsel requested the following special instruction on duress:

Any act which would otherwise constitute a crime may be excused on the grounds that it was done under compulsion or duress that was present, imminent, and impending and of a nature to induce a well-grounded apprehension of death or serious bodily harm if the act is not done. Koontz v. State, 204 So.2d 224.

The trial court denied the request for a special instruction, observing the matter could be argued to the jury as dealing with the defendant's intent.

The jury retired at 2:45 p.m. to consider its verdict. At 3:24 p.m., the jury returned to the courtroom, having presented the following question to the court: "Did the inspector testify that Michael told him that Maurice & Michael picked up the gun from Maurice's cousin in the afternoon prior to the robbery?" The trial judge explained that the court could not make any comments about factual issues in evidence, and asked the jurors to return to the jury room and continue their deliberations. At 5:35 p.m., the jurors were returned to the court-room, where the trial court inquired as to their progress. Upon being advised that there were a couple of questions which the jurors considered important, the trial court stated:

... we're not here to comment on the evidence in the case. If you feel any additional amount of time certainly would assist you, of course, feel free to do so. If not, then you need to relate that to the court and the court will have to consider that and decide as to whether or not we need to proceed in the case. Let me read you one additional instruction which might assist you and then I'm going to ask that you go back and let me know within just a few minutes as to whether or not you feel that — after hearing this additional instruction, whether or not you feel you can fulfill your responsibility in this case. (Emphasis supplied.)

The trial court then gave the Florida standard jury deadlock instruction. Fla.Std. Jury Inst. (Crim.) 3.06. Twelve minutes after receiving the supplemental instruction, the jury returned a verdict of guilty of robbery with no aggravating circumstances.

At the outset, it is well settled that a defendant is entitled to have the jury instructed on the rules of law applicable to his theory of defense, if there is any evidence to support such defense. Hooper v. State,

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

Related

Ted'Qwon McGowan v. State of Florida
District Court of Appeal of Florida, 2024
Malcolm T. Cooper v. State of Florida
District Court of Appeal of Florida, 2024
Stallworth v. State of Florida
District Court of Appeal of Florida, 2023
Philip Morris USA Inc. v. Mary Brown, as Personal Representative etc.
243 So. 3d 521 (District Court of Appeal of Florida, 2018)
Campbell v. State
186 So. 3d 577 (District Court of Appeal of Florida, 2016)
Turner v. State
29 So. 3d 361 (District Court of Appeal of Florida, 2010)
Monforto v. State
28 So. 3d 65 (District Court of Appeal of Florida, 2009)
Mickel v. State
929 So. 2d 1192 (District Court of Appeal of Florida, 2006)
Driggers v. State
917 So. 2d 329 (District Court of Appeal of Florida, 2005)
Vail v. State
890 So. 2d 373 (District Court of Appeal of Florida, 2004)
Roma v. State
785 So. 2d 1269 (District Court of Appeal of Florida, 2001)
Cambareri v. State
746 So. 2d 1215 (District Court of Appeal of Florida, 1999)
Young v. State
711 So. 2d 1379 (District Court of Appeal of Florida, 1998)
Holmes v. State
710 So. 2d 188 (District Court of Appeal of Florida, 1998)
Scoggins v. State
691 So. 2d 1185 (District Court of Appeal of Florida, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
567 So. 2d 456, 1990 WL 126326, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gahley-v-state-fladistctapp-1990.